A Broken System:Error Rates in Capital
Punishment and Deterrence: Examining the Effect of Executions on Murder in
Authors John Sorenson, Robert Wrinkle, Victoria Brewer, and James Marquart
examined executions in Texas between 1984 and 1997. They speculated that
if a deterrent effect were to exist, it would be found in Texas because of
the high number of death sentences and executions within the state. Using
patterns in executions across the study period and the relatively steady
rate of murders in Texas, the authors found no evidence of a deterrent
effect. The study concluded that the number of executions was unrelated to
murder rates in general, and that the number of executions was unrelated
to felony rates. (45 Crime and Delinquency 481-93 (1999)).
Brutalization, and the Death Penalty: Another Examination of Oklahoma's
Return to Capital Punishment. In this
study, author William Bailey speculated that if executions had a deterrent
effect in Oklahoma, it would be observable by comparing murder rates and
rates of sub-types of murder, such as felony-murder, stranger
robbery-related killings, stranger non-felony murder, and argument-related
killings, before and after the resumption of executions. Bailey examined
the period between 1989 and 1991 for total killings and sub-types of
killing. After controlling for a number of variables, Bailey found that
there was no evidence for a deterrent effect. He did, however, find that
there was a significant increase in stranger killings and non-felony
stranger killings after Oklahoma resumed executions after a 25-year
moratorium. (36 Criminology 711-33 (1998)).
Effects of an
Execution on Homicides in California.
Author Ernie Thompson examined criminal homicides in Los Angeles before
and after California's execution of Robert Harris in 1992, the state's
first execution after a 25-year moratorium. Thompson found slight
increases in homicides during the eight months following the execution. (3
Homicide Studies 129-150 (1999)).
of Execution: The Capital Punishment Quagmire in America.
Keith Harries and Derral Cheatwood studied differences in homicides and
violent crime in 293 pairs of counties. Counties were matched in pairs
based on geographic location, regional context, historical development,
demographic and economic variables. The pairs shared a contiguous border,
but differed on use of capital punishment. The authors found no support
for a deterrent effect of capital punishment at the county level comparing
matched counties inside and outside states with capital punishment, with
and without a death row population, and with and without executions. The
authors did find higher violent crime rates in death penalty counties. (Rowman
and Littlefiled Publishers, Lanham, MD (1997))
Source : Death Penalty
reported in Homicide Studies, Vol. 1, No.2, May 1997, indicates
that executions may actually increase the number of murders, rather than
deter murders. Prof. Ernie Thomson at Arizona State University reported a brutalizing
effect from an execution in Arizona, consistent with the results of a
similar study in Oklahoma.
three leading states where law enforcement officers were
feloniously killed in 1998 were California, the state with the highest
death row population (7); Texas, the state with the most executions since
1976 (5); and Florida, the state that is third highest in executions
and in death row population (5). (FBI, Uniform Crime Reports, Law
Enforcement Officers Killed and Assaulted, 1998)
her weekly Justice Department news briefing, U.S. Attorney General
Janet Reno said that she has yet to find any evidence that the death
penalty deters crime. "I have inquired for most of my adult life
about studies that might show that the death penalty is a deterrent. And I
have not seen any research that would substantiate that point," said
Reno. (Reuters, 1/21/00)
Bureau of Justice Statistics reports that the South repeatedly has
the highest murder rate. In 1999, it was the only region with
a murder rate above the national rate. The South accounts for 80% of
executions. The Northeast, which has less than 1% of all executions
in the U.S., has the lowest murder rate.
is a growing bipartisan consensus that flaws in America's death-penalty
system have reached crisis proportions. Many fear that capital trials
put people on death row who don't belong there. Others say capital
appeals take too long. This report—the first statistical study ever
undertaken of modern American capital appeals (4,578 of them in state
capital cases between 1973 and 1995)—suggests that both claims
sentences do spend a long time under judicial review. As this study
documents, however, judicial review takes so long precisely because
American capital sentences are so persistently and systematically
fraught with error that seriously undermines their reliability.
23 years worth of results reveal a death penalty system collapsing under
the weight of its own mistakes. They reveal a system in which lives and
public order are at stake, yet for decades has made more mistakes than
we would tolerate in far less important activities. They reveal a system
that is wasteful and broken and needs to be addressed.
central findings are as follows:
during the 23-year study period, the overall rate of prejudicial
error in the American capital punishment system was 68%.
In other words, courts found serious, reversible error in nearly
7 of every 10 of the thousands of capital sentences that were fully
reviewed during the period.
trials produce so many mistakes that it takes three judicial
inspections to catch them—leaving grave doubt whether we do
catch them all. After state courts threw out 47% of death
sentences due to serious flaws, a later federal review found
"serious error"—error undermining the reliability of the
outcome—in 40% of the remaining sentences.
state courts come first and see all the cases, they do most the
work of correcting erroneous death sentences. Of the 2,370 death
sentences thrown out due to serious error, 90% were
overturned by state judges—many of whom were the very judges
who imposed the death sentence in the first place; nearly all of whom
were directly beholden to the electorate; and none of whom,
consequently, were disposed to overturn death sentences except for
very good reason. This does not mean that federal review is
unnecessary. Precisely because of the huge amounts of serious
capital error that state appellate judges are called upon to catch, it
is not surprising that a substantial number of the capital
judgments they let through to the federal stage are still seriously
to reversal, error must be serious, indeed. The most common
errors—prompting a majority of reversals at the state
post-conviction stage—are (1) egregiously incompetent defense
lawyers who didn't even look for—and demonstrably missed—important
evidence that the defendant was innocent or did not deserve to die;
and (2) police or prosecutors who did discover that kind of
evidence but suppressed it, again keeping it from the jury.
[Hundreds of examples of these and other serious errors are collected
in Appendix C and D to this Report.]
error rates put many individuals at risk of wrongful execution: 82%
of the people whose capital judgments were overturned by state
post-conviction courts due to serious error were found to deserve a
sentence less than death when the errors were cured on retrial;
7% were found to be innocent of the capital crime.
error rates persist over time. More than 50% of all cases
reviewed were found seriously flawed in 20 of the 23 study years,
including 17 of the last 19. In half the years, including the most
recent one, the error rate was over 60%.
error rates exist across the country. Over 90% of American
death-sentencing states have overall error rates of 52% or higher.
85% have error rates of 60% or higher. Three-fifths have
error rates of 70% or higher.
(whose governor recently declared a moratorium on executions after a
spate of death-row exonerations) does not produce atypically faulty
death sentences. The overall rate of serious error found in
Illinois capital sentences (66%) is very close to—and slightly lower
than—the national average (68%).
so much error takes time-a national average of 9 years from
death sentence to the last inspection and execution. By the end of the
study period, that average had risen to 10.6 years. In most
cases, death row inmates wait for years for the lengthy review
procedures needed to uncover all this error. Then, their death
sentences are reversed.
much error, and the time needed to cure it, impose terrible costs
on taxpayers, victims' families, the judicial system, and the wrongly
condemned. And it renders unattainable the finality, retribution and
deterrence that are the reasons usually given for having a death
trying capital defendants the first time around, operating the
multi-tiered inspection process needed to catch the mistakes, warehousing
thousands under costly death row conditions in the meantime, and having to
try two out of three cases again is irrational.
report describes the extent of the problem. A subsequent report will
examine its causes and their implications for resolving the death penalty
is possible to find the full report at the justice
project web site.
One often cited
pro-death-penalty argument is based on what is called the deterrence
hypothesis. The deterrence hypothesis suggests that states with a death
penalty will have lower homicide/murder rates than state without a
death-penalty because the lethal consequence of committing a
homicide/murder will "deter" individuals from committing the
crime in the first place.
While this hypothesis
seems to make intuitive sense to many, the vast number of empirical
studies overwhelmingly demonstrate that the presence or institution of a
death-penalty has no significant influence of homicide/murder rates in
general, or on specific acts of homicide/murder such as the killing of
police officers or of prison guards. In fact, contrary to the intuitive
appeal of this hypothesis, studies which are not inconclusive most often
show that murder/homicide rates are higher in states with a
death-penalty than those without (see Peterson & Bailey, Journal of
Social Forces, (66), 774-781, 797-800, 1988; also in "A capital
Punishment Anthology," ed. by Victor Streib, Anderson Publishing
(Note: Currently, New
York is an unviable example for the deterrence effect since violent
crime had decreased before the death penalty was re-instituted.)
I strongly recommend
this review article to anyone on either side of the death-penalty issue.
This summary of empirical studies should generate much concern,
especially for those living in states with a death-penalty. If past
studies are an indication of what we can expect in states pursuing the
adoption of a death-penalty, they would indicate that these efforts will
result in an INCREASE in homicide/murder rates!
This should be grave
cause for concern for anyone worried about homicide/murder rates. It
would seem, as a purely personal observation, that this flawed
hypothesis represents the basis for much support for the death-penalty.
Unfortunately, this well-motivated sentiment (to reduce homicide/murder
rates) may actually have the opposite consequence of increasing these
rates. The irony of this suggests that we cannot allow intuitive,
emotional arguments to substitute for informed, empirically motivated
decisions. If the research shows that our efforts actually yield an
increase in violent crime, we seriously need to re-think our current
policies--assuming, of course, that we really want to reduce murder
William Earl Griffin
The University of Texas at Austin