The Death Penalty:Deterrence and Question of Racial

Equality

Law and Social Science L6172Prof. Jeffrey Fagan

March 6 2006Vijay Singh

Gregg v. Georgia 428 U.S. 153 (1976)

Facts:- D was charged with armed robbery and murder- Guilty: 2 counts of murder / 2 counts of armed

robbery- Sentenced to death

- Aggravating Circumstances:- Committed in the course of a felony- Committed for the purpose of receiving money

Furman: A precedent

“It may be that we now possess all the proof that anyone could ever hope to assemble on the subject (deterrence and the death penalty). But, even if further proof were to be forthcoming, I believe there is more than enough evidence presently available for a decision in this case”

– Justice Marshall’s concurrence in regards to Sellin study

Gregg: The court’s holding

“The results have simply been inconclusive” - (Justice Stewart discussing statistical attempt to evaluate death

penalty as deterrent)

Court deferred judgment to state legislatures of policy rationale behind death penalty

Held that the current Georgia system wasn’t as arbitrary as pre-Furman

Therefore, no violation of 8th or 14th amendment

Dr. Ehrlich: His study

Econometric Study performed by Dr. Isaac Ehrlich

Hypothesis:

“If the execution ‘risk’

declines, then the murder rate will go up”

Universe: All murders from 1933-1969

What does all this mean?

Erlich and his critics…

1. Period Effects

2. Nationally Aggregated Data

3. LWOP Effect?

4. Reliability of Information

5. Retest Troubles

Later attempts at perfection

Other ways to conduct the study:

1. Matching- Similar to Sellin study, using similar states

2. Local Deterrence / Temporary Effects- Some studies have shown that there is a deterrent effect

close to execution site, for short times

Interested in reading more???

Prof. Fagan's Testimony

Law and Econ View ???

More Studies...and Death Penalty Reading

McClesky v. Kemp 481 U.S. 279 (1987)

Facts:- D was charged with two counts of armed robbery

and murder

- D was convicted and sentenced to death

- D filed petition for habeas corpus relief- Challenged death penalty with 8th and 14th amendment

8th & 14th – The Constitution in Question

14th amendment – “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Washington v. Davis - Discriminatory intent necessary for equal protection claims

8th amendment –“nor cruel and unusual punishments inflicted”

Zant (dicta) – Factors such as race are irrelevant to sentencing decisions and shouldn’t be considered Uncertainty over what standard of proof necessary

McClesky: The court’s holding

Court of Appeals and SCOTUS accepted the study as true

However, no discriminatory intent

Concern over slippery slope

Proportionality Review

Problems:1. Universe Problems

2. Subjectivity

3. Replication

Solutions:1. Scale / Index Construction

2. Objective criteria / Guidelines for judges

Dr. Baldus: His work and findings

- Commissioned by the LDF

- Two Parts: 1. Procedure2. Charging and Sentencing

- Universe:- 2,485 Post-Furman

Cases in Georgia

- Most comprehensive study to date

What did he find??

Race of victim equal to:1. Multiple stabbings

2. Serious (felony) prior record

3. Armed robbery involved

Prosecutorial Discretion More likely to seek death

penalty Less likely to grant plea

bargain

4% Black D’s / 7% White D’s

Black D / White Victim

22%

White D / White Victim

8%

Black D / Black Victim

1%

White D/ Black Victim

3%

Problems with mid-level cases

Problems with mid level cases

Georgia Charging and Sentencing Study Graph

-4

-2

0

2

4

6

8

10

12

14

16

-2 -1 0 1 2 3 4

Sentencing for White Victims Sentencing for Black Victims

How bad is this study?

1. Data in parole files was incomplete

2. Differences in Coding

3. Rebuttable Presumption

The Singh study ???

Wouldn’t change the method of the study much

Challenge Jury Pool – Change of Venue

“By so limiting capital punishment equal protection claims, the court in McClesky created a nearly

insuperable barrier to proof.”

- David Baldus on holding in McClesky

Going Forward

Justice Powell“my understanding of statistical analysis ranges from limited

to zero”

Daubert standards

Judicial Education ?