<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:29599.wais]
S. Hrg. 109-540
AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
FEBRUARY 1, 2006
__________
Serial No. J-109-58
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Property Rights
SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
Ajit Pai, Majority Chief Counsel
Robert F. Schiff, Democratic Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 1
prepared statement........................................... 54
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 3
prepared statement........................................... 92
WITNESSES
Bright, Stephen B., President and Counsel, Southern Center for
Human Rights, Atlanta, Georgia................................. 16
Fagan, Jeffrey, Professor of Law and Public Health, Columbia
University, New York, New York................................. 21
McAdams, John, Professor of Political Science, Marquette
University, Milwaukee, Wisconsin............................... 14
Rubin, Paul H., Samuel Candler Dobbs Professor of Economics and
Law, Emory University, Atlanta, Georgia........................ 19
Schieber, Vicki A., Chevy Chase, Maryland........................ 8
Scott, Ann, Tulsa, Oklahoma...................................... 5
SUBMISSIONS FOR THE RECORD
Bosco, Antoinette, Brookfield, Connecticut, prepared statement... 36
Bright, Stephen B., President and Counsel, Southern Center for
Human Rights, Atlanta, Georgia, prepared statement............. 38
Death Penalty Information Center, Richard C. Dieter, Executive
Director, Washington, D.C., letter............................. 58
Fagan, Jeffrey, Professor of Law and Public Health, Columbia
University, New York, New York, prepared statement............. 63
Goertzel, Ted, Professor of Sociology, Rutgers University,
Camden, New Jersey, article.................................... 96
Human Rights Watch, Jennifer Daskal, Advocacy Director, U.S.
Program, New York, New York, prepared statement................ 104
McAdams, John, Professor of Political Science, Marquette
University, Milwaukee, Wisconsin, prepared statement........... 108
Rubin, Paul H., Samuel Candler Dobbs Professor of Economics and
Law, Emory University, prepared statement...................... 125
Schieber, Vicki A., Chevy Chase, Maryland, prepared statement.... 134
Scott, Ann, Tulsa, Oklahoma, prepared statement.................. 140
Toure, Hon. Opio, Democratic Floor Leader, Oklahoma House of
Representatives, Oklahoma City, Oklahoma, letter............... 146
AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES
----------
WEDNESDAY, FEBRUARY 1, 2006
United States Senate,
Subcommittee on the Constitution, Civil Rights and Property
Rights, of the Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:34 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sam Brownback
(chairman of the subcommittee) presiding.
Present: Senators Brownback and Feingold.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Chairman Brownback. The hearing will come to order. I want
to thank everybody for joining us here today on an important
and sensitive topic. We have got some excellent witnesses
coming in front of us to testify today and I deeply appreciate
their appearance and the difficulty that it is for them to
appear, in some cases here because of personal emotion that is
involved.
The Fifth and 14th Amendments to the United States
Constitution provide that no person may be deprived of life
without due process of law. These provisions contemplate and
our history reflects the adoption of the death penalty as a
form of criminal punishment. Yet the Eighth Amendment prohibits
in undefined terms the use of cruel and unusual punishment.
Reading these provisions together, it seems our founding
document neither demands nor prohibits capital punishment.
Instead, the Constitution generally permits the people to
decide whether and when capital punishment is appropriate.
So each generation may, and good citizens should, consider
anew the law and facts involving this solemn judgment. I
believe America must establish a culture of life. That is my
personal belief. It has been one of the guiding principles for
me being involved in the legislative process. If use of the
death penalty is contrary to the promotion of a culture of
life, we need to have a national dialog and hear both sides of
this issue. All life is sacred and our use of the death penalty
in the American justice system must recognize this central
truth.
I called this hearing in order to conduct a full and fair
examination of the death penalty in the United States. I
believe it is important for lawmakers and the public to be
informed about a punishment which, because it is final and
irreversible, stirs much debate.
Although most decisions about the death penalty rest with
the people and their elected representatives, these decisions
are made in the shadow of extensive Supreme Court precedents.
For instance, in the 1973 case of Furman v. Georgia, the
Supreme Court invalidated capital punishment nationwide by
stating in a brief yet broad opinion that application of the
death penalty violated the Eighth and 14th Amendments. Just 4
years later, in Gregg v. Georgia, the Supreme Court revisited
this judgment. The Court held that capital punishment for the
crime of murder did not violate these constitutional
provisions. Justice Stuart's opinion decided that the Framers
contemplated and applied the death penalty and that it was not
per se invalid two centuries later.
In the past 30 years, the Supreme Court has dealt with
numerous death penalty appeals. Just yesterday, it stayed an
execution in Florida and permitted another to go forward in
Texas. Occasionally, the Supreme Court has issued more wide-
ranging decisions. for example, the Court held in a 2002 case
of Atkins v. Virginia that execution of the mentally disabled
constituted cruel and unusual punishment. Similarly, in last
year's case of Roper v. Simmons, the Court invalidated the
death penalty for minors. In each of these decisions, the Court
found what it deemed to be a popular consensus against the use
of death penalty in cases involving mentally disabled or minor
defendants.
Aside from these constitutional issues, the Federal and
State death penalty systems have inspired many policy
arguments, such as whether the use of this punishment deters
crime. In the Roper case, the five-Justice majority stated
that, quote, ``the absence of evidence of deterrent effect is
of special concern because the same characteristics that render
juveniles less culpable than adults suggest as well that
juveniles will be less susceptible to deterrence.'' Conversely,
my Senate colleague, Senator Kyl, previously has introduced
into the Committee record information suggesting that the death
penalty may deter crime.
It is my intention to explore in this hearing the various
aspects of capital punishment, from the statistics on
deterrence to the views of crime victims. It is my hope that by
carefully reflecting on America's experience with the death
penalty, the people can make informed judgments worthy of the
Constitution's faith in future generations. We will hear today
from victims and experts on both sides of this debate. I look
forward to a robust discussion on this important issue.
[The prepared statement of Senator Brownback appears as a
submission for the record.]
On our first panel, we are privileged to have two
witnesses, Ms. Vicki Schieber and Mrs. Ann Scott. Both Vicki
and Ann are parents who each lost their daughters to senseless
acts of violence and who will share their stories and views on
the death penalty. I know I speak for everyone on this panel
when I say our hearts and our prayers go out to you and to your
families and, above all, your children. We greatly appreciate
your willingness to come before the Senate and share these
tragic stories.
On the next panel, we will take testimony from four experts
on capital punishment. First is Professor John McAdams from
Marquette University. Professor McAdams has written extensively
on the death penalty and has participated in a number of forums
on defending capital punishment.
Next is Stephen Bright, President of the Southern Center
for Human Rights. He has written extensively on capital
punishment and teaches law at both Harvard and Yale.
To discuss the effectiveness of the death penalty as a
deterrent, we will hear from Professor Jeffrey Fagan of
Columbia Law School and Professor Paul Rubin from Emory
University. Professor Fagan has conducted significant research
on the changes in homicide rates over the past few decades.
Professor Rubin recently co-authored a study that has been
called one of the most comprehensive death penalty studies ever
conducted, and I want to thank them for their participation
here today.
I enter into this hearing seeking wisdom and seeking
information from people that have been around this topic for a
long period of time. This has been a long debate in the United
States and I want to hear from people that have thought a long
time about it and I want to hear from people that have been
affected directly by it.
With that, I think we will have an excellent hearing on an
important topic.
I want to turn to my colleague, Senator Feingold, who has
conducted hearings on this topic in this Subcommittee before
and has done an outstanding job on it. He has thought a great
deal about this and I respect his opinion on that.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I thank you for
holding this hearing. I obviously have some opening remarks I
would like to make, but I would also like to ask that my full
statement be placed in the record.
Chairman Brownback. Without objection.
Senator Feingold. Mr. Chairman, I know that our staffs have
worked closely together on this hearing and I very much
appreciate your commitment to exploring some of critically
important issues related to capital punishment. I am not
certain, but I think I may have been the last Chairman of the
Subcommittee to hold hearings on the subject of the death
penalty, and we have not had chairmen for some time, so I want
to give you credit for the conversations we have had about this
and for your following through on your idea of having this kind
of a hearing to explore this issue. I think it is in the best
traditions of the work we do on this Subcommittee.
We have witnesses on both sides of the issue and I thank
them for being here and look forward to hearing their views. As
you know, Mr. Chairman, I oppose capital punishment, but I do
welcome today's discussions and I hope it will help advance the
debate on the death penalty that is going on in this country.
In particular, I know it must be difficult for the
witnesses on this first panel to share their highly personal
experiences, and I, too, appreciate their willingness to
provide their valuable and important perspectives on this
complex issue. I would also ask, Mr. Chairman, that a written
statement from Antoinette Bosco, another mother who suffered a
horrible loss when her son and his wife were murdered in 1993,
be submitted to the record.
Chairman Brownback. Without objection.
Senator Feingold. Mr. Chairman, across the nation, people
are reconsidering capital punishment. Recent polls, jury
verdicts, and actions taken by all three branches of government
and States across the country reflect the changing attitudes
about the death penalty in this country. With advances in DNA
technology, numerous exonerations of people on death row, and
new revelations that innocent people may have actually been put
to death, more and more people are questioning the accuracy and
the fairness of the administration of the death penalty. In my
view, this trend is a hopeful sign as I believe there continue
to be numerous moral, ethical, and legal problems with the
death penalty.
Evidence of these changing attitudes can be seen across
America. The U.S. Conference of Catholic Bishops recently
launched a campaign to end the use of the death penalty. In New
York earlier this year, the State's highest court struck down
the State's capital punishment statute, which had passed only
10 years earlier, in 1995. And then the legislature declined to
reinstate the law, making New York the first State to abandon
capital punishment since 1976.
Meanwhile, in Virginia, the death penalty was a key issue
in the last gubernatorial election. Tim Kaine, then Lieutenant
Governor, has long been personally opposed to the death
penalty, although he pledged to enforce the law in Virginia. In
the final weeks before the election, his opponent, Jerry
Kilgore, began an ad campaign that heavily criticized Kaine's
opposition to the death penalty, but Virginians did not take
the bait. Despite Kilgore's attack ads, the citizens of
Virginia elected Tim Kaine Governor.
I think what happened in Virginia demonstrates how far we
have come. The issue can no longer be used as a political
grenade. The majority of Americans may not yet oppose the death
penalty, but the electorate now understands what a serious
issue this is and it recognizes when capital punishment is
being exploited for political purposes.
Much more is happening at the State level that has not
received nearly as much attention. North Carolina and
California recently created commissions to study the
administration of the death penalty in their respective States,
joining many other States that have already done so. A
moratorium on execution remains in place in Illinois, and a
court-ordered hold on executions in New Jersey was recently
converted into a legislatively enacted moratorium. Others are
under consideration in other States.
Many State legislatures have worked to address flaws in
their systems or even rejected efforts to reinstate the death
penalty. State courts have limited or banned the death penalty,
including, I am told, Mr. Chairman, the Kansas Supreme Court,
which in 2001 ruled that the State's death penalty law was
unconstitutional. That case, Kansas v. Marsh, was heard in the
U.S. Supreme Court in December.
Even in Texas, the State that executes by far the most
people every year, a life without parole sentence was recently
enacted, giving juries a strong alternative to the death
penalty. And Texas Governor Perry also established a Criminal
Justice Advisory Council to review the State's capital
punishment procedures.
Many Americans have heard about innocent people ending up
on death row and recognize that we cannot tolerate errors when
the State is imposing such a final penalty. It is horrific to
think that we may have already executed individuals who were,
in fact, innocent. It saddens me greatly that information has
come to light strongly demonstrating that two men put to death
in this country in the 1990s may well have been innocent. That
sends chills certainly down my spine, as I am sure it must for
all Americans.
Just law year in Missouri, local prosecutors in St. Louis
reopened the case of a 1980 murder because the evidence against
the man convicted of the crime had fallen apart. That man,
Larry Griffin, was sentenced to death and he was executed by
the State of Missouri more than 10 years ago. Yet now very
serious questions about his guilt are being raised. CNN
recently reported that a University of Michigan law professor
who researched the case found that the first police officer on
the scene now claims the person who testified as an eyewitness
gave false testimony. The victim of the shooting, who was never
contacted before Mr. Griffin's original trial, stated that the
person claiming to be an eyewitness at the original trial was
not present at the scene of the crime.
In Texas, a young man named Rubin Cantu was executed in
1993. He was just 17 at the time of the murder for which he was
executed. Again in this case, the only eyewitness to the crime
has recanted his statement and told the Houston Chronicle that
Cantu was innocent. The Houston Chronicle also reported that
the judge, prosecutor, head juror, and defense attorney have
since realized that, as the newspaper put it, quote, ``his
conviction seems to have been built on omissions and lies.''
Mr. Chairman, I am sure you would agree the potential loss
of one innocent life through capital punishment should be
enough to force all of us to stop and reconsider this penalty.
This case illustrates the grave danger in imposing the death
penalty.
In closing, I hope this hearing will help all of us to take
a long, hard look at capital punishment. I want to sincerely
thank you again, Mr. Chairman, for deciding to hold this
hearing and I look forward to hearing from all of our
witnesses. Thank you, Mr. Chairman.
Chairman Brownback. Thank you, Senator Feingold. I
appreciate that very much and the thoughtfulness you have put
into this topic for many, many years.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Chairman Brownback. Dr. Coburn is trapped in another
meeting and he wanted me to pass along that he appreciates very
much you being here, Mrs. Scott, as a constituent and also is
grateful for your willingness to share your story in this
circumstance. He would be here, but he is trapped in another
session.
With that, I would like to turn the floor over to you, Mrs.
Scott, to state your story. We have a time clock that is a bit
of a guideline. If you need to go longer, that is fine, but we
will run it at 7 minutes and then that will give us a chance to
be able to ask some questions then afterwards, if we could.
Mrs. Scott.
STATEMENT OF MRS. ANN SCOTT, TULSA, OKLAHOMA
Mrs. Scott. First of all, I want to thank you for inviting
me here. Let me introduce my daughter to you. This is a picture
of her that was taken many years ago. She was a fourth-year
junior at the University of Oklahoma at the time of her murder.
She was studying both elementary education and she minored in
music. She played both the flute and the piccolo.
Our daughter, Elaine Marine Scott, age 21, a fourth-year
junior studying elementary education at the University of
Oklahoma, was brutally beaten, tortured, sexually assaulted,
and beaten to death by Alfred Brian Mitchell at the Pilot
Recreation Center in Oklahoma City on January 7, 1991. Mitchell
had just been released on his 18th birthday from Lloyd Rader
Juvenile Detention Center in Sand Springs, Oklahoma.
Elaine was born in Novato, California, a small California
town about 30 miles north of San Francisco. She went to school
in Novato until the sixth grade, when her father was
transferred to Tulsa, Oklahoma, with Safeway Stores. With all
the crime and violence that was up and coming in California, we
thought that Oklahoma would be a quiet, drug-free State and a
great place to raise kids. Well, not quite.
Elaine graduated from Jenks High School with good grades.
She played both the flute and the piccolo in the high school
marching band and orchestra and she was a good kid. She
attended the University of Oklahoma, majoring in elementary
education and minoring in music. She worked part-time at Pilot
Recreation Center in Oklahoma City with children from poor
families.
Unfortunately for Elaine, Alfred Brian Mitchell was not a
good kid. Mitchell, who lived in the Pilot Recreation Center
neighborhood, was released from Lloyd Rader Juvenile Detention
Center on his 18th birthday. He had been locked up there for 3
years for raping a little 12-year-old girl that he dragged off
from her bus stop early one morning. The Department of Human
Services, DHS, could have kept him for another year, but chose
not to because they couldn't help him. They needed his bed for
someone that they thought that they could help, and so he came
home.
Seventeen days after his release from Lloyd Rader, he beat,
tortured, sexually assaulted, and beat our beautiful daughter
to death using his fists and a golf club until it broke. He
stabbed her in the neck five times with a compass that you
would use to make circles with. And finally, he used a wooden
coat tree that crushed her skull and sent shards of wood
completely through her brain. She never had a chance.
The homicide detectives and the police forensic people did
an outstanding job of keeping us informed of everything that
was happening as they traced all the evidence and put things
together. Mitchell was identified and caught within 24 hours.
At first, it was thought that he was just a witness, but as
time went on, he was booked for murder, robbery of her car,
larceny, and finally for rape.
Our first encounter with Mitchell was at the first
preliminary hearing, which was held that February. There he
was, smiling and laughing with his family and friends as though
he didn't have a care in the world. After three different days
of testimony, the judge ruled that the case would go to trial.
On leaving the courtroom, Mitchell told all the news reporters
that the prosecutor would have to prove his case. He then got
on the elevator, still smiling at the reporters, and was taken
away.
In June 1992, the trial finally started after preliminary
hearings, many delays because of a lack of funds for expert
defense witnesses, and several different dates for motion
hearings. Again, and all through the trial, Mitchell smiled and
laughed at the news reporters. Even when he was on the witness
stand, he never admitted that he and he alone had murdered
Elaine. It took the jury one-and-a-half hours to find him
guilty of murder, and 2 hours to give him the death penalty.
In 1999, there was an evidentiary hearing at the Federal
court, where it was determined that the forensic chemist from
the Oklahoma City Police Department had lied on the witness
stand. Even though Judge Thompson from the Federal court threw
out the rape charges, he upheld the death penalty because the
murder itself was so heinous, atrocious, and cruel.
In July of 2000, at the Tenth Circuit Court, the judges
overturned the sentence because it was felt by them that the
jury might have given Mitchell a lesser punishment if the rape
charge had never been presented, and so back to court we went
in October of 2002 to redo the sentencing phase of the trial.
After 2 weeks of listening to evidence, the case was given to
the jury. It took them 5 hours, but they came back with a
unanimous verdict and once again gave Mitchell the death
penalty. Mitchell, true to form, stood at the elevator waiting
to be taken back to prison, turned and gave our oldest son an
ear-to-ear grin. He then got on the elevator and was once again
taken away.
On October 11, 2005, we finally started the appeals process
again with the State Court of Criminal Appeals. We have not as
of this date had a decision from them, nor do we know when we
will. But we will be ready to continue on and see this through
to the end when it comes.
The defense's big argument during the Court of Criminal
Appeals hearing was that Judge Susan Caswell was a friend of
our son's mother-in-law. David's mother-in-law is Judy Bush,
who was the head of Homicide Survivors, a support group in
Oklahoma City. Because of her position, she knew all of the
judges in Oklahoma City at the district court and therefore she
had made friends with Judge Susan Caswell. But this was the
defense's big thing at the Court of Criminal Appeals.
Through all of this, Mitchell has never shown any remorse
for his actions. If you ask if we seek retribution, yes, we do.
Alfred Brian Mitchell was found guilty by two different juries
of his peers. He was given the death penalty because of his
crime and because it was felt that he would commit more crimes
if he were ever, under any circumstances, released. I, me, I
want this bully gone. I want him to disappear off the face of
this earth. I want him to rot in hell for all of eternity. He
is a bad seed that never should have been born. He is an
animal, and when you have animals that attack people, you take
them to the pound and you have them put away. What this animal
has taken from us can never be returned. It has taken a lot of
the love and the laughter from our home.
I have had my husband break down and sob in my arms, and I
have watched his health, both mental and physical, deteriorate
over the years. I have seen Elaine's two brothers struggle with
life. David, the oldest, has gone through panic attacks and at
times thought that he should be dead because he has outlived
his sister and that is not the way it should be. I have watched
Elaine's little brother clam up. To this day, Robert still
cannot talk about his most favorite person in the whole wide
world. His big sister is gone, taken violently from him, and he
still can't deal with it. The rest of us, my husband and I,
have closed ranks with our children. Even though they have
grown and David is married now, we still have become more
protective and we are frightened every time that they are out
of sight or we don't hear from them.
Will we ever get over the murder of our daughter? Will
there ever be any closure for us? I don't think so. Even after
Mitchell has been executed, we will still be left with all of
our wonderful memories of Elaine and all of the horror that was
done to her. But perhaps once he is gone, we will be able to
spend more time on the happy memories and less on thinking how
her life ended. We will be at Alfred Brian Mitchell's
execution. We will not rejoice, because it won't bring Elaine
back. But we don't expect that it will. However, the process
will finally be over and we will no longer have to spend any
time or effort on pursuing justice for our daughter. Perhaps we
will finally hear the remorse that so far has not been
expressed. But for certain, what it will do is to ensure that
he will never be able to hurt anyone ever again, and I hope and
pray that you will never have to walk in our shoes.
Thank you.
Chairman Brownback. Thank you, Mrs. Scott, for being here
and sharing that testimony with us.
[The prepared statement of Mrs. Scott appears as a
submission for the record.]
Chairman Brownback. Ms. Schieber.
STATEMENT OF VICKI A. SCHIEBER, CHEVY CHASE, MARYLAND
Ms. Schieber. Chairman Brownback, Senator Feingold, I am
very privileged and honored to be here today before you.
I am the mother of a murder victim, Shannon Schieber, who
was murdered in the city of Philadelphia in 1998. I am here
today speaking also for my husband and my son, Shawn. I am on
the board of two organizations that actively work to oppose the
death penalty in our country. I am a resident of the State of
Maryland and I serve there on the board of the Maryland
Citizens Against State Executions, and I am also an officer and
on the board of a national nonprofit group called Murder
Victims' Families for Human Rights. I am testifying today on
behalf of the representatives of families in every State, every
State, who have lost a loved one but who have actively been
involved in opposing the death penalty.
We believe and have come to believe through our own
personal tragedies and experiences that the death penalty does
not heal nor will we find closure of that horrible ``c'' word
that we all hate. Killing my daughter's assailant, however,
would not honor our daughter, and, of course, like Ann,
certainly I agree would not bring her back. The death penalty
does not help to create the kind of society that we want to
live in, a society where life is valued and respected. We
believe that executions just create another grieving family. It
doesn't lessen our own pain. And we are very, very concerned
about the conflicted message that we believe the death penalty
in our country sends to our children about society's respect
for human life. I have a little saying on my refrigerator that
many comment on. Why is it that we kill people for killing
people when we are taught that killing is wrong?
My husband and I were both born and raised in the Midwest
and raised in homes with a deep religious faith. Hatred and
revenge were never condoned and we were taught that the
ultimate form of hate was the deliberate taking of another
person's life. We were taught, as well as we taught our
children, that we are our brother's keeper and that human life
is sacred and we are here in this life to do something to make
a difference.
So in living these principles, we couldn't apply the death
penalty to our own daughter's murderer. If they aren't your
principles when it is tough, they never were your principles in
the first place. We would have had to be complicit in the
application of that death penalty once the assailant of the
murder of our daughter was apprehended.
So not only have we gone through this terrible, terrible
tragedy, but after the person was apprehended, we faced an
incredible system in the city of Philadelphia where the
district attorney and the prosecutors could not believe that
now that this person was apprehended, that we would want to
have life without parole, that we did not believe in the death
penalty, even though we were very outspoken about it for many
years while they sought to find this person. They even at one
point said to us, ``Didn't you love your daughter? Why wouldn't
you want this?'' Oh, yes, we loved our daughter. I have to
spend just a few minutes telling this incredible gift that we
were given.
Our daughter was born and raised in the State of Maryland.
She was brilliant and she was beautiful. She was beautiful not
only on the outside--there is someone sitting behind you that
looks just like her--but she was beautiful on the inside. She
was taught to give and share. She had many friends. She was a
very kind and caring woman. She had friends of all faiths and
of all races and she was involved in so many public and active
support groups. The charities that my husband and I were
actively involved in, our children served in, too.
She was a straight-A student, went to high school,
president of the student body, National Merit Scholar,
Presidential Award Scholar, could have picked any school that
she wanted to go to college, absolutely brilliant. She went to
Duke University and in 3 years earned a triple major in math,
economics, and philosophy with a 3.7 grade point average,
almost an unheard of thing. She could have chosen any graduate
school to go to. She wanted so much to do so much for society.
So she had to go to the No. 1 school, very competitive, so she
chose the Wharton School of Business, the University of
Pennsylvania. At her age of 23, she was accepted on a full
scholarship and stipend to get a Ph.D. in finance and insurance
there. She was absolutely a gift.
Well, we didn't know when we moved her to Philadelphia. We
talked to the University of Pennsylvania housing department.
They said, oh, there is this very safe area. Where would be the
best place to have her live? It was just south of Rittenhouse
Square in Center City. It was the brownstone where there were
about six other graduate students living in the same building.
What we didn't know when we moved her into what we thought was
a safe neighborhood, after checking everything out, was that
there had been a serial rapist operating in that very area,
within five or six blocks. All the victims, and there were four
rapes and assaults by this same individual in that area within
a few months before we moved her there.
So when she was walking home one night, she just thought
the guy that was following her was just trying to pick her up.
She did not know that these crimes were all there. The police
had DNA evidence. they didn't report it to the community
because of a terrible practice that not only happened in
Philadelphia, but we have learned has happened and is happening
in other cities, and that is crimes are downgraded. You can
make your city look a lot safer if you don't report all crimes,
and sexual assaults are often hard to get away with. You can
just tell her, well, you probably had too much to drink or
maybe it was your boyfriend. So there were several crimes
before our daughter's that didn't get reported, so there was no
pattern and nothing given to the community to warn her.
At two o'clock in the morning of May 7, the guy climbed to
a second-floor balcony and broke in and murdered her. She
screamed for help. A graduate student across the hall called
the police. ``I heard my neighbor screaming. I heard a choking
sound.'' The police got there very quickly, stayed for five
minutes. After knocking on the door, looking around, they said,
``Nobody is in there. I don't hear anything,'' and they left.
The 911 call tape we had, it had no equivocation in that
person's voice. The police left.
The next day, my son, who was planning to have lunch with
her on his way back to his college in Massachusetts, went to
the door. The guy across the hall said, ``Oh, I heard them. I
called 911. I heard them.'' They pushed her aside and took the
door and there he found her, raped, and beaten brutally. What
were we going to do now?
We had chosen to honor our daughter in very positive ways.
There is a scholarship in her name at Duke. There is a roofing
endowment fund, inner-city families trying to rebuild. But we
are honoring her to try to abolish the death penalty and help
create a society where life is valued, to work to reduce
violence rather than perpetuate it and to help improve our
seriously, seriously flawed system, one that is racist,
arbitrary, and seriously open to abuse.
We believe the current system does not serve victims'
families. It focuses attention and vast expenditures on the
offenders, but there is no support for our victims. The peace
of the families I represent today has given us incredible
energy. We are not spending endless efforts in courts pursuing
appeals and legal actions. We have pursued life without parole
in the cases where we may do that, and at the hearing, the
sentencing hearing, the person who murdered our daughter turned
around and said he didn't like the way he was and he asked to
be forgiven. Ann did not have that same experience. It is a
very, very healing process and I work very hard to talk to the
person's family to work with them to help us all heal, because
it is a society that is badly in need of it.
And may I take one last example of something that happened
just this summer. I have been very honored and privileged to
get to travel in many parts of the world. In my husband's job,
you get a lot of frequent flyer miles. Our last visit was in
the European Union last summer and they were giving a lot of
the tour guides descriptions of everything they do there in
Europe and comparing them to our country, because most of the
people on the tour were Americans. And they said, well, what
sort of things do you have to agree to to be here?
``Well,'' they said, ``one of the things that we all have
to agree to to be in the EU--you don't have to agree to
everything, but you have to not have the death penalty as a
punishment for a criminal for a murder or for a serious crime.
We do not allow that in this country. And,'' she says, ``but
you are Americans. We are the countries that founded you. We
are the countries that settled your country. What you are doing
is medieval.'' I was so embarrassed. I was so embarrassed. And
that is not the only part of the world that I have been in
where people just don't understand what we do in our country.
They even know a lot about it. They say it is so seriously
flawed. I mean, it depends on what State you commit the crime,
whether you are black or white. It depends on a whole horrible
system that we hope your work here will somehow have to do to
change it.
Finally, I want to give a quote that President Bush gave
last night. It caught my eye. ``Our country's greatness is not
measured in power or luxuries, but by who we are and how we
treat one another.'' I want to be proud of my country, one that
has a fair and not a flawed system of justice, and I am going
to work the rest of my life to try to abolish that system. I
have many opportunities. I speak to many colleges and
universities across the country, many groups and informal
groups, I have had that honor. It is--I think, 1 day, maybe
somebody in that group will be a future Supreme Court Justice,
a Senator, or someone that can make a difference in this
system, and I do this all in honor of Shannon Schieber.
Thank you very much.
Chairman Brownback. Thank you.
[The prepared statement of Ms. Schieber appears as a
submission for the record.]
Chairman Brownback. It is tough to question you ladies.
Hopefully, my colleague will have better, more lucid questions.
It is just you have such powerful stories and circumstances to
talk about.
Mrs. Scott, you talk--and this hearing is about the death
penalty and I really do want to hear from people who have been
victimized by others. As I take it, really, at the core for you
is the issue of closure, of finally getting this resolved and
closure with justice. Is that--I mean, when you search your own
heart about this and that this is a right and fair thing, that
is at the core, would that be correct?
Mrs. Scott. Yes and no. I think that my husband and I would
possibly consider a life without parole sentence if it truly
meant life without parole. In the State of Oklahoma, you can
become eligible to have your sentence downgraded from life
without parole to a life sentence after serving 15 years.
Chairman Brownback. So you don't trust the system to
actually--
Mrs. Scott. I don't.
Chairman Brownback [continuing]. Mean life without parole?
Mrs. Scott. Absolutely not. Now, because--and when you are
given a life without parole sentence in Oklahoma, you are no
longer in a maximum, or you do not have to be in a maximum
security facility. You can be downgraded to a medium facility,
and there are an awful lot of people who escape. There are an
awful lot of people who murder one another in medium security.
I don't consider it a safe option.
The death penalty, in our case, is a right and proper
sentence for the very simple reason that Mitchell had already
dragged off a little 12-year-old girl and raped her. When he
was through with her, and it was testified to, he told her,
``If you tell anyone, I will kill you.'' Her family was so
frightened when he was released from juvenile that they packed
up and they moved. Her father was Hispanic, quit a very good
welding job that he had in Oklahoma City, moved the family to
El Paso, and both he and his wife and I believe one of their
sons had to go to work to support the family. But they were
frightened enough for Maria that they did that.
Chairman Brownback. So yours is more you don't trust the
system and you don't believe the system can keep people safe
from a known murderer in it.
Mrs. Scott. That is correct, but I truly feel that the
death penalty is the right sentence for people like Alfred
Brian Mitchell. There is absolutely no remorse on his part.
Would he do it again? Absolutely. He had already raped one
little girl and had been released after serving his time. When
he got around to our daughter, he sexually assaulted her. She
lay on the floor, beaten within an inch of her life, and he
masturbated on her. He did not want to get caught for rape, and
so he masturbated on her and then he beat her to death because
he didn't want her to tell. This was how he was going to escape
the system.
So what would he do if he was given another bite at the
apple? I don't know. I don't want to know. We have no daughters
left to give. Who is going to give up their daughter if he is
ever released?
Chairman Brownback. Ms. Schieber, answer--and I am not at
all pitting you two ladies against each other.
Mrs. Scott. Oh, that is OK. We are used to it.
Chairman Brownback. Well, that is not my objective at all,
but I honestly--
Mrs. Scott. Thank you.
Chairman Brownback. --really want to know from your
opinions. Answer her questions about the system not being
trustworthy on this or the person getting out and committing
this crime and we can't protect society from somebody who has
no remorse, no regret, and would appear to be willing to kill
again.
Ms. Schieber. Thank you, Senator. I am very concerned about
some things about the system, too, but I am a person of--I
believe that they have done a very good job in my daughter's
assailant's case. When we were discussing all this through the
sentencing hearings and everything else, as a part of this
system, we wanted the life without patrol in a Federal security
system and we wanted him there the rest of his life.
Everyone that was working on this case knew quite clearly
that this person, if he ever got out or was let out because of
some timed parole system, would go back and do exactly the same
thing. He was a sexual predator. There were 14 victims that
were known and linked by DNA. Our daughter was the only one
murdered, and we believe that was because the police were at
the door and he had to strangle her. But he did not go in there
intending to do that, to put her to death.
The point about it, though, is he had to be kept in prison
for the rest of his life and we were assured that it would be a
maximum security prison and that there would be no time limits,
that he would not come up for parole, and that was what gave us
the peace that that was the right decision. I can understand,
listening to some of Ann's concerns, if this was in a State
that didn't give those kinds of insurances to the family, that
would be very, very hard for me. And, you know, you can
understand. That would not change my view personally about the
death penalty, but I do believe that the system has to be
trusted, and where we see problems and flaws, we need to work
to change that.
Chairman Brownback. I have gone over my time. Please feel
free to take an equal amount, Senator Feingold.
Senator Feingold. Mr. Chairman, I don't have any questions
for the panel but I want to thank both of you again for your
moving testimony. I appreciate your coming here to share such
highly personal stories. It really makes a person think again
and again about this issue. I just think this is an example of
where victims' voices are not always heard in this kind of
debate and this is the right way to start this hearing, Mr.
Chairman. Thank you very much.
Chairman Brownback. Is there anything either of you would
like to add additionally on your views on the death penalty or
the system?
Mrs. Scott. To the best of my knowledge, there has never
been anyone who has been executed who was found innocent. There
was a case not too long ago, and I can't remember where it was,
where they went back and they retested the DNA because everyone
was sure that this person was innocent. It came to be that he
was not. It was a definite DNA match. Since we have DNA, yes,
there have been a number of cases that have been reversed
because it was not a DNA match, and for those people, it was a
good thing that we had the DNA and I am glad that that was
found out.
But yes, as technology has developed and we do have these
tools, I cannot see--and with all the safeguards that we have,
when we go after appeal and appeal and appeal before the death
penalty ever is carried out, I can't see that there are really
going to be any mistakes. There has not to this time been
anyone who has been executed that has been proven innocent.
Chairman Brownback. Ms. Schieber, anything else?
Ms. Schieber. I support the idea that if we just completely
eliminated the system in our country, go back to where we were
in our earlier days and listen to many other people and parts
of the world, then we are going to start operating with a life
without parole if it is appropriate for the sentence that the
person is given. If it is appropriate, that would be what would
be applied, the life without parole. The death penalty wouldn't
exist. You wouldn't have all these costly, long trials,
appeals, years and years on death row that are very, very
debilitating to the families and to the people in our society.
I think we can do much better use of our money and
resources in this country and I hope that the beginning of this
whole process of review will happen here with this Committee
and I applaud your efforts for these hearings and I hope we go
forward in this country with the groundwork you have laid here.
Thank you.
Chairman Brownback. Thank you both very much. You will be
in my prayers tonight for healing.
Ms. Schieber. That is very important to me.
Chairman Brownback. The next panel is Dr. John McAdams,
Professor of Political Science, Marquette University in
Milwaukee; Mr. Stephen Bright, President and Counsel, Southern
Center for Human Rights; Dr. Paul Rubin, Professor of Economics
at Emory University; and Dr. Jeffrey Fagan, Professor of Law
and Public Health at Columbia University.
Mr. McAdams, we will start with you. We are going to run
the time clock at seven minutes. I would like to hold you to
that so we could get to some questions. The swearing in
ceremony for the new Justice of the Supreme Court is at four
o'clock today and I would like to make it down for that, so I
am going to run a bit tighter on timeframe. I don't know if my
colleague is as excited as I am about the new Justice on the
Supreme Court.
[Laughter.]
Chairman Brownback. He may not be as interested in
finishing quite so on time, but it is an historic time and an
historic day, so we would like to--and each of your full
statements will be included in the record as if presented, so
if you would like to summarize, that is perfectly acceptable,
as well. The full statement will be included in the record.
Mr. McAdams.
STATEMENT OF JOHN MCADAMS, PROFESSOR OF POLITICAL SCIENCE,
MARQUETTE UNIVERSITY, MILWAUKEE, WISCONSIN
Mr. McAdams. There are an easy dozen issues surrounding
this and I am going to limit myself to only one. I am used to
talking 50 minutes at a time and now I have seven. I am going
to address the whole issue of ``innocents'' on death row and
innocents who claim to have been executed.
The key thing to remember about the anti-death penalty
activists is that they vastly inflate the number of innocents
who have ever been on death row and they make claims of
innocents being executed that simply don't survive scrutiny.
The sort of canonical list of innocents supposedly put on death
row is from the Death Penalty Information Center. When I
checked the website Sunday, it listed 122 people, which sounds
appallingly large, but if you analyze it even superficially,
you find that it is terribly inflated.
For example, back in 2001, I analyzed the list when it had
95 people on it and by the admission of the Death Penalty
Information Center, 35 inmates got off on procedural grounds
and another 14 got off because a higher court believed the
evidence against them was insufficient. Of course, if the
higher court was right, there is an excellent reason to release
them, but it is not proof of innocence.
The State of Florida in 2002 noted that there were 24
people on the list from Florida who were supposedly innocents
on death row and they appointed the Florida Commission on
Capital Crimes that concluded that only four of those 24
cases--in only four of those 24 cases was the factual guilt of
the inmate in doubt.
Other examinations have been no more favorable. For
example, a liberal Federal district court in a case called
Quinones in New York ruled the death penalty unconstitutional,
but if you look at that particular case, the court admitted
that the Death Penalty Information Center list ``may be over-
inclusive,'' and following its own analysis asserted that for
32 people on the list, there was evidence of factual innocence,
as opposed to procedural innocence, and Ward A. Campbell,
supervising Deputy Attorney General of the State of California,
reviewed the list when it had 102 people on it and he concluded
that, I am quoting, ``it is arguable that at least 68 of the
102 defendants on the list should not be on the list at all.
Only 34 released defendants have claims of actual innocence,
less than one-half of 1 percent of the 6,930 defendants
sentenced to death between 1973 and 2000.''
Indeed, staffers of this Committee--it was the minority
staff at the time--produced a report on, at that time, I think
it was 2002, S. 486, where they did a thorough job of debunking
a lot of these claims of actual innocence.
So believing the claims of the anti-death penalty activists
about the number of innocents on death row is roughly
equivalent to believing the National Rifle Association about
how many Americans have saved themselves from serious bodily
harm because they own and carry guns, or the claims of NARAL
about how many back-alley abortions would result from
overturning Roe v. Wade. Activists tend to inflate the evidence
and make it serve their purposes.
Another question is, have any innocents been executed? Have
any innocents at all been executed? And indeed, anti-death
penalty proponents make that claim. Back in the 1980s, a volume
by Hugo Adam Bedau and Michael Radelet claimed 23 innocent
people executed in the U.S. in the 20th century. They only
named one person since the 1970's that they claimed was
innocent and had been executed, and their claims--the fellow
was named James Adams--their claims about that person were
debunked in a Stanford Law Review article that took Bedau and
Radelet to task for, quote, ``disregard for evidence'' and
putting a spin on the evidence to support their thesis of
Adams' innocence.
Interestingly, if you look at the more sensible death
penalty opponents, they won't make strong claims. Let us
consider a guy named Barry Scheck, who is co-founder of the
Innocence Project. He was in 1998 interviewed by Matt Lauer on
the ``Today Show'' and Lauer asked him a very leading question.
Quote, ``Since 1976, 486 people have been executed in this
country. Any doubt in your mind that we put innocent people to
death?'' Scheck responded, ``Well, you know, I--I think that we
must have put to death innocent people, but if you are saying
to me to prove it right now, I can't.''
Now, there are still claims of innocent people being put to
death. We heard from Senator Feingold. I would urge everyone to
look at the Death Penalty Information Center website, where
there is still--if it hasn't been sanitized as of yet--there is
still an essay making claims of innocence from Roger Keith
Coleman. And if you just read the essay on the Death Penalty
Information Center website, you will come away absolutely
convinced that Coleman must be innocent. But Coleman was the
guy, you remember, very recently who actually had DNA testing
and it proved him guilty. So I would urge everyone to please
read that blurb on the Death Penalty Information website, then
look at what the DNA evidence found, and I think you will get
an idea that if you just believe what death penalty opponents
say, you may be misled.
On a personal note, I actually teach a course on the
Kennedy assassination and a lot of these claims of innocence
remind me of what some conspiracy theorists say to try to get
their boy Lee Harvey Oswald off the hook.
Now, death penalty opponents will say that if any who is
innocent has been put on death row, that is unacceptable, or
certainly if anyone has been executed who is innocent, that is
unacceptable. They don't seem to pay a lot of attention to the
fact that, quite clearly, a very large number of innocents have
been imprisoned. I refer people to the work of the Innocents
Project that has found--it has let off at the moment 174 people
exonerated on the basis of hard DNA evidence and they admit
that they have a huge backlog of other people.
Then there is the question of what the reasonable standard
is. Is it reasonable to believe that a sanction of this kind or
any public policy can be perfect? We can never fight even a
just war without having some innocent casualties. The FDA can
never approve a drug without some people dying of a rare and
arcane reaction. Standards of perfection simply can't apply to
any public policy, and it is unreasonable for death penalty
opponents to try to impose it on the death penalty when they
wouldn't think of doing so on any other punishment.
Chairman Brownback. Thank you very much. Thanks for the
information. We will want to probe some of that in questioning.
[The prepared statement of Mr. McAdams appears as a
submission for the record.]
Chairman Brownback. Mr. Bright.
STATEMENT OF STEPHEN B. BRIGHT, PRESIDENT AND COUNSEL, SOUTHERN
CENTER FOR HUMAN RIGHTS, ATLANTA, GEORGIA
Mr. Bright. Thank you very much, Mr. Chairman. Mr.
Chairman, Senator Feingold, I am honored to be here today. I
appreciate the opportunity to talk about this. It is a great
moral issue in our country today.
In November, the Birmingham, Alabama News issued an
editorial opposing the death penalty. It said one reason was
because it was committed to a culture of life and that the
death penalty in Alabama and throughout our country was not
consistent with that culture of life. It quoted Pope John Paul
II when he said the dignity of human life must never be taken
away, even in the case of someone who has done great evil.
But it went on to say the system is broken, and I would
submit, based on my experience in 30 years of handling these
cases and looking at it as a teacher, not only is this system
broken, it has always been broken. I don't think anybody doubts
that before 1972, the way in which the death penalty was used
in this country is not something to be proud of, that there was
race discrimination, that it was almost exclusively against
poor people, that there were perfunctory trials that weren't
really trials, and a number of other things, and that it was
arbitrary. As Justice Potter Stewart said, being sentenced to
death was like being struck by lightning. There was no reason
why one person would be sentenced to death and another person
would not be. And that is why the court found the death penalty
unconstitutional in 1972.
Now, 30 years ago, the court approved a group of statutes
from various States that were supposed to fix all those
problems and were supposed to end the arbitrariness, supposed
to end the discrimination, and so forth, but they failed
miserably. One reason may be that it can't be done. the year
before Furman, in 1971, the Supreme Court said to try to
identify the characteristics of offenders and crimes that call
for the death penalty is beyond human capability. Just a year
later, basically, we set on a course of trying to do just that,
whether it can be done or not.
But nothing in those statutes adopted in 1976, or approved
in 1976, do anything about the inadequate representation of
poor people. Virtually everyone who gets the death penalty is
poor, and anyone who is poor facing a crime is given a court-
appointed lawyer. One city in this country sends more people to
death than any other, Houston. Three cases where the lawyer
slept during the trial. That is a pretty extraordinary example.
I am not saying that every lawyer does or that every lawyer is
drunk, like the lawyer that represented one of my clients who
had to literally be picked up off the floor and was put in jail
for the night to sober up and came back the next day and
continued the trial. Those are not everyday cases, but the kind
of mediocrity, the lack of lawyers that have the resources, the
skills, the capability.
We represented a fellow who had been sentenced to death at
a trial where he was represented by a collections lawyer and a
mortgage lawyer. He gets the death penalty. When he is capably
represented, he is acquitted in a very short period of time,
Gary Drinkard, and he is a carpenter right now doing good work
and is a good citizen of Alabama today.
There is nothing in those statutes that ensure the accuracy
of eyewitness identification, nothing that says that every
person's memory is reliable, every person who testifies,
nothing that says that informants who are often witnesses in
these cases testify truthfully.
Mr. Chairman and Senator, last week, a judge California who
presided over a death penalty case where a man was sentenced to
death wrote a letter to the Governor asking that the sentence
be commuted because he is convinced that the informant who
testified against that person was not telling the truth when he
testified at the trial. And that is the presiding judge of the
case, a judge appointed by Governor Reagan to the bench.
There is another part of it, though. The innocence
question, I don't have enough time, unfortunately, to talk much
about it, but I would make two points. One, whether it is 34 or
134, that is too many. When people are found innocent, like
Anthony Porter was, a man who would have been executed, went
all the way through trial, appeal, and all the post-conviction
review--the only reason Anthony Porter wasn't executed,
Senators, is because he was brain damaged and mentally retarded
and there was a question about was he competent, did he
understand what was going on. Two days before the execution, he
gets a stay.
The journalism class at Northwestern proves that he is
innocent and gets a statement, a confession from the person who
actually did it. He was the third person released, not somebody
that just people claim he is innocent, walked out of the prison
as innocent, freed by the journalism class at Northwestern.
Now, something is not right when the journalism students are
getting people out and the legal system is convicting the wrong
people.
I think there are a lot of people that we will never know
whether they are innocent or not. The DNA cases prove things
conclusively. You can look at that DNA profile. You can look at
whatever it is, the semen, the blood, whatever, and you can
say, that is a match. That is the person. This Roger Coleman
case, people have been trying to get that examined for years
and it had been fought tooth and nail by the Attorney General's
office. If we had done it way back when, we would have known
all along.
But take Gary Graham in Texas, sentenced to death,
represented by Ron Mock, the famous lawyer, 14 people on death
row, operated out of a bar, is one of the worst lawyers in all
of Texas, but over and over again, he defended these people, an
identification case. Later evidence comes out that there are
people who say they were with Graham, other reasons to question
it. You will never know. A jury might acquit based on that
evidence. They might convict based on that evidence.
The same thing is true of the Cantu case. The same thing is
true in some of the other cases that we have heard about. We
just don't know whether the people were guilty or not. Our
legal system not only is not infallible, it can't sometimes in
these cases make the right determination.
But the other point I want to make before I lose all my
time is just that there is a second question at the penalty
phase. Is this person so beyond redemption that they should be
eliminated from the human community? That is not a very good
question to pose to 12 people, particularly in the heat of a
horrible crime. And how do you make that decision? Is that a
theological, is it a moral, is it a legal decision that is
being made?
We know that there are many people who are guilty, I will
grant you, but who are not people who are appropriate for the
death penalty. I have represented many of those people. Many of
those people in habeas corpus, as a result of the review
through habeas corpus, ultimately, their death sentence was set
aside. One works in my office right now. Another comes to my
class and talks to my students.
You know, people are very cynical about religious
conversion in prison. Billy Moore ran a Bible study group for
years on death row in Georgia. He has been out since 1991. He
is still running Bible study groups. He is still active in his
church. He is supporting a wife and two children, two girls who
are both in college. This man was guilty of murder, no
question, but he was not somebody who had committed the most
heinous murder. It was what usually puts people on death row.
Who was the prosecutor in the case? Where was the case
prosecuted, because these cases are decided by plea bargains.
Is it sought and is it plea bargain? And then the quality of
legal representation that was appointed to defend him.
I just last say this. We see in these cases that the death
penalty is not essential. It was said over here a moment ago,
well, in war, you have some innocent casualties. When the FDA
tests drugs, there are going to be a few people who are victims
of that testing. But we don't need the death penalty. We have
life imprisonment without parole. It can be fixed. Most States,
you do not have any chance of parole. Life without parole means
life imprisonment without any possibility of parole, just what
it says.
Chairman Brownback. Please wrap it up, Mr. Bright.
Mr. Bright. And that is all I am saying, is that we don't
have to have the death penalty, and therefore justifying losing
innocent people, whether it is 34 or 134, is awfully hard to
support.
Thank you very much, Mr. Chairman.
Chairman Brownback. In my early career, I was a court-
appointed lawyer at different times and if I had a guy that was
innocent that I was appointed to represent, it was, I thought,
easy to get him off. I mean, the system worked, I thought, very
well. And so when everybody is insulting these court-appointed
lawyers, I am a bit personally offended here in the system.
[Laughter.]
Chairman Brownback. But I understand there are other cases
involved in this and you make a persuasive point.
[The prepared statement of Mr. Bright appears as a
submission for the record.]
Chairman Brownback. Mr. Rubin.
STATEMENT OF PAUL H. RUBIN, SAMUEL CANDLER DOBBS PROFESSOR OF
ECONOMICS AND LAW, EMORY UNIVERSITY, ATLANTA, GEORGIA
Mr. Rubin. Thank you. Thank you for having me here today. I
am an economist and professor of economics and law at Emory
University and I am not going to be talking about individuals
or people as an economist. I am talking about numbers. I was a
co-author of one of the first papers--the first paper,
published paper looking at the effects of capital punishment
using post-moratorium data. I am going to talk about that paper
and several other papers in the literature.
Modern research on the economics of crime began with the
work of the Nobel Prize winning economist Gary Becker. One of
Becker's arguments was that criminals should respond to
incentives, where the major incentive in the criminal justice
system is the probability and severity of punishment. Virtually
all economists who study crime are now convinced that in the
general case, this is true. An increased chance of punishment
or a more severe sentence leads to reduced levels of crime.
These reductions are not only due to incapacitation, but there
is also a deterrent effect from increased severity and
increased probability of punishment. When economists applied
this argument to capital punishment, there was a political
backlash, even though the theoretical grounds for believing it
are the same as for any other class of punishments.
The debate in economics began with two papers by Isaac
Ehrlich in the 1970s. Ehrlich, a student of Becker's, was the
first to study capital punishment's deterrent effect using
multi-variant regression analysis. This enabled Ehrlich to
separate the effects on murder of many different factors, such
as racial and age composition, the population, income,
unemployment, and several other things. Ehrlich wrote two
papers on capital punishment using different statistical
techniques and data. Both of these found significant deterrent
effects, about eight homicides deterred per execution, but the
data available and the statistical methods meant that many
people raised serious questions about his work and there were
lots of papers using similar data and different methods and
getting different results. Most of these studies suffer from
flaws relative to what you can do now because of the data and
the statistical methods available.
More recently, there have been 12 econometric or economic
studies on capital punishment that have been conducted and
published or accepted in refereed journals. Most of these
studies used improved data and improved statistical techniques,
various forms of multiple regression analysis, panel data
analysis, and they look at things including demographics,
economic factors, police effort, and so forth. They measured a
marginal effect of execution. That is the effect of execution
as it actually occurs given the alternatives that actually are
available in the State and given that the person has already
been convicted and usually sentenced. Virtually all 12 of these
studies find a deterrent effect.
As I said, I was co-author of one of the studies which used
20 years of data from all U.S. counties to measure the effect
of deterrent effect. Another study uses monthly data from all
of the U.S. States to measure the short-term effect of capital
punishment. Interestingly enough, this paper by my colleague,
Joanna Shepherd, looks at different categories of murder to
determine what kinds of murders are deterred by execution and
she finds that all types of murders, including crimes of
passion, are deterred, and she also finds that murders of both
African-Americans and whites are deterred. So people raise
racial questions about the implementation of capital
punishment. We don't address that, but her work does show that
lives of African-Americans are saved by capital punishment.
Another study looks at the Supreme Court moratorium in the
1970s and finds that relaxing this moratorium led to fewer
murders.
Other papers use different methods and data, but they all--
virtually all--but all of them find a deterrent effect. Usually
the numbers in the reported literature are between three and 18
homicides deterred per execution, again, depending on which
kind of study you are looking at.
There is one paper that has recently been published in the
Stanford Law Review that is critical of some of these studies.
The authors find that it is possible to use various statistical
manipulations to apparently eliminate some of the deterrent
effect that some of the studies have found. Interestingly
enough, this paper has not been subject to the scientific
refereeing process. It was published in a law review, where the
refereeing is done by students. It is in the process of being
reexamined and it is hard to know what it will find, but even
then, this paper only considers some of the empirical papers
and some of the methods used. There are still many other papers
that it does not consider that also find deterrent effect.
So I think at this time, we have to say that the weight of
the evidence is pretty clearly that there is deterrence. This
is what economic theory would predict. It predicts that people
respond to incentives. There is no stronger incentive than
avoiding being executed. And the weight of the statistical
evidence, as it exists now, is consistent with the deterrent
effect.
I thank you.
Chairman Brownback. Thank you very much, Dr. Rubin. I look
forward to exploring that some more with you, too, in
questions.
[The prepared statement of Mr. Rubin appears as a
submission for the record.]
Chairman Brownback. Mr. Fagan.
STATEMENT OF JEFFREY FAGAN, PROFESSOR OF LAW AND PUBLIC HEALTH,
COLUMBIA UNIVERSITY, NEW YORK, NEW YORK
Mr. Fagan. Thank you, Chairman Brownback, Senator Feingold,
for having me here. Professor Rubin has laid the case for
deterrence, which has been argued to be now a rationale for the
expansion of the use of capital punishment by some advocates.
But also, as he noted, a number of other social scientists and
scholars challenge the scientific credibility of the new
findings and they warn about the moral hazards and practical
risks of expanding the use of capital punishment. So I think
this lays out some public policy choices that are fairly clear
on capital punishment and that they, in part, depend on the
accuracy, the reliability, and the certainty of this new social
science evidence.
So I want to testify today about some significant errors
and flaws that I have found in the work that Professor Rubin
has referred to, a paper by John Donahue in the Stanford Law
Review, some errors that he has found, and discuss just exactly
what the nature of the weakness in the evidence is, and then
talk about how that weakness in the evidence can become part of
an algebra of public policy to think about how to go forward or
not go forward with capital punishment in the future.
We find, in general, not just Professor Donahue's paper but
my own work, as well, that the new deterrent studies are
fraught with a number of technical and conceptual errors. The
data don't speak clearly at all as to whether or not there is
an effect, the size of the effect, if there is one, and even
the direction of the effect, if there is one.
We find the results are extremely fragile and unstable.
When they are subjected to other kinds of analysis, different
measurements, different analytic strategies, or whether
additional factors are introduced into the models themselves,
the results bounce around. Sometimes they are significant,
sometimes they are not. The effect sizes go up, the effect
sizes go down.
Second, the new studies omit several important factors that
are common sense improvement issues or forces that drive down
murder rates or drive up murder rates. The most important one
is the growing use of life without parole sentences for capital
murders. LWOP has the same incapacitative effect as does
execution and it has deterrent effects, as well.
The 1978 panel of the National Academy of Sciences found
that it was virtually impossible to disentangle deterrence and
incapacitation from the social science evidence about deterrent
effects. At least 100 executions since Gregg in 1976 were
voluntary. These are death row inmates who elected not to fight
their execution, and at least some of these persons stated on
the record that death was preferable to life in prison. When
multiple murderers like Michael Ross in Connecticut said that
they prefer execution to life imprisonment, one must seriously
ask whether life without parole is not an equally strong, if
not stronger, deterrent.
To omit this factor is a very serious bias in the
scientific estimates of the deterrent effects of execution.
LWOP is a far more frequent sentence today in murder
convictions than the death penalty. In States like California,
Pennsylvania, and North Carolina, LWOP sentences vastly exceed
the number of death sentences that are given. And as we have
noted before, Texas now has introduced the possibility of life
without parole. In Texas, where much of the effect is
concentrated, we suspect that over the next several years, as
more LWOP sentences occur there, the Texas effects will begin
to be moderated, if not neutralized.
Beyond LWOP, many of the studies have failed to consider
incarceration generally. There is one paper by economists
Lawrence Katz and Steve Levitt who conclude that there is no
deterrent effect from executions, but a very large deterrent
effect, a suppression effect on murder, from natural deaths
that take place in prisons. They conclude that prison itself,
prison conditions, specifically undermine the case for
deterrence. In a few studies that actually do compete
deterrence with incapacitation, they find that the
incapacitation effects are much higher by imprisonment.
Many of the studies just simply don't take into account
other factors that we know drive homicides up and down over
time. Probably the most significant is drug epidemics. Most of
the homicide declines and rises in the U.S. have followed
almost lockstep with the rise and fall of drug epidemics over
time, and yet drugs are just simply not a part of the equations
that are used to estimate deterrent effects.
In our analysis right now at Columbia we are undertaking,
we are looking specifically at something that has not been done
in the capital punishment literature, which is look at those
crimes which are subject to the death penalty, capital murders
and things that fall under the felony murder rules. And our
preliminary estimates, which we will subject to peer review as
good science should be, suggest that the lines are actually
flat. There is no deterrent effect whatsoever on capital
murders, the kinds of murders that usually evoke a death
sentence--robberies, homicides, homicides in the course of
sexual assault, killings of police officers, and so on.
When you take the weakness and fragility of the evidence on
deterrence and balance it against two other realities of
capital punishment, I think it changes the algebra when you
start to think about public policy choices involving capital
punishment. First, the costs of capital punishment are
extremely high. Even in States where prosecutors rarely seek
the death penalty, the cost of obtaining convictions and
executions in capital cases range from $2.5 to $5 million per
case in current dollars--I have cited studies in my testimony
where these figures came from--compared to less than $1 million
for each killer who is sentenced to life without parole. Local
governments bear the burden of these costs, diverting almost $2
million per capital trial from local services--hospitals,
health care, police, and so on, causing counties to borrow
money or perhaps even raise taxes to finance capital
prosecutions.
Next, errors are a reality and they can't be ignored in
this calculus. I simply don't accept the idea of collateral
damage as something we should consider in the discourse on
capital punishment. In our research at Columbia, Professor Jim
Liebman and myself--Jim has testified before this Committee,
this Subcommittee--we have shown that error rates in capital
cases are high. Two-thirds was the figure that we came up with.
We think that is a conservative figure, and we designed our
study to produce a conservative figure. We have pretty good
evidence that in some States, Pennsylvania and Virginia being
good examples, the rate of error has climbed since we ended our
study in 1995.
These are serious errors. Half the reversals at these
stages were for errors that undermined the reliability of the
verdict that the defendant committed a capitally aggravated
murder. We don't claim innocence, nor do these defendants
claim--well, they may claim innocence. We don't think that they
are innocent, but we do think that their culpability never
rises to the level that our Constitution demands for capital
punishment.
We find that 9 percent of the cases that we studied between
1973 and 1995, 9 percent of the retrials following reversals
wound up with exonerations, and not for the technical errors of
witnesses disappearing. They found the other guy. That is an
extraordinarily high rate.
Most important to today's hearing is the fact that errors
and deterrence are closely linked. The States that seek and use
the death penalty the most are the ones that have the highest
reversal rates. An increase in death sentences would increase
the error rate and would increase the risks that follow with
errors.
In 1978, a distinguished panel appointed by the National
Academy of Sciences considered the evidence that Professor
Ehrlich offered. It was new and compelling at the time about
the deterrent effects of capital punishment. The panel rejected
those claims. We are in the middle of the same debate today.
There are disagreements among good people, well-meaning social
scientists, economists, and legal scholars about this evidence.
Many of them now are coming forward after the publications that
Professor Rubin has cited and are challenging and rejecting the
claims of deterrence, not so much claiming that there is no
deterrence, but just simply that the evidence is unreliable for
making sound public policy choices.
Chairman Brownback. Please wrap up your testimony, if you
could, Dr. Fagan.
Mr. Fagan. Just let me say very quickly that, in sum, the
high costs of the death penalty, the fragility and
unreliability of the evidence, the fact that States that
execute the most people have the highest error rates, these
frame public policy choices that the States have to make and
that perhaps we make here in the Federal Government.
If States are going to spend hundreds of millions of
dollars trying to buy a small number of executions over the
next decade that have uncertain effects on future murders,
might we not spend those dollars more effectively to fund
additional police detectives, prosecutors, and judges to arrest
and incarcerate murderers and other criminals who currently
escape any punishment? Thank you.
Chairman Brownback. Thank you very much.
[The prepared statement of Mr. Fagan appears as a
submission for the record.]
Chairman Brownback. Just run the time clock, if you are OK
with it, at ten minutes to give us a chance to get a little
flow of questioning going here, if that is all right, Senator
Feingold.
I would like to come back to Dr. Rubin first on this
because it is fresh in my mind, I guess, as much as anything.
What about the comparison of the deterrent effect of life
without parole versus death penalty? Has that comparison been
done in some sort of model that is reliable, or can it be done?
Mr. Rubin. I haven't seen it done. Perhaps Professor Fagan
has. As he says, his reports aren't published yet. But what we
do and what the studies that I mentioned do is they compare
capital punishment with the actual alternatives that exist in
the States today. So if States are doing that, then what the
studies are finding is relative to what would have happened to
that person had he not been executed. So in that sense, they
are comparisons. But if States are just adopting them, then we
don't have any evidence.
I was on Bill Reilly's show one time and he said, ``What
about sending people to Alaska, where it is very cold, and
making them break rocks?'' And I said, well, we don't have
evidence on that particular punishment because it hasn't been
done, and to the extent that we haven't yet done life without
parole, we don't. To the extent that some of the States that
are executing people are also doing that, then we have an
implicit comparison.
Chairman Brownback. OK. Then let me ask you this one,
because this one jumped out at me as a fact, and I am sure you
have a thought on this. If this is a deterrent under economic
models, and I appreciate your thought on it. I generally tend
to think people react to stimuli that are in their environment
and react one way or another. But in States like New York, that
have carried out no executions, States like Texas that have
carried out the highest rates, and both have experienced
roughly the same drops in the murder rates over time. How does
the economic model that you put forward explain that, if I have
those numbers correct?
Mr. Fagan. I was under the impression that they have about
the same murder rate now, but that Texas has gone down more
substantially than New York, but maybe someone else--
Mr. McAdams. Texas has declined more than any other State
over the course of the 1990s. It is an outlier in terms of the
radicalness of the decline.
Mr. Rubin. With all due respect, Senator--
Chairman Brownback. Let me finish that thought and then I
would be happy to engage that. So its rate was substantially
higher even than, say, New York, and it has gone down--
Mr. McAdams. That is my understanding. I have certainly
looked at the data on changes in the 1990s and Texas is an
outright outlier. It has been going down all over the nation,
but Texas has the sharpest decline over the decade of the
1990s.
Chairman Brownback. Which, Dr. Rubin, you would say this
proves the theory--
Mr. Rubin. No, I actually wouldn't say that, because even
in Texas, I think the number of executions is not--you may not
pick it up in the gross data. We aren't really looking at
gross--I mean, we are looking at gross data, but it is simply
per execution. The number--
Chairman Brownback. You don't do it amalgamated the total
number. It is just per execution--
Mr. Rubin. Per execution, so whether--
Chairman Brownback. And you don't know of studies on it on
a Statewide basis to look and compare?
Mr. Rubin. Well, the trends are--the number of people
executed is relatively small number to the number of murders,
so you could have a statistically significant effect and have
lives saved but still not pick it up in gross data over time
trends of that sort.
Chairman Brownback. Mr. Fagan?
Mr. Fagan. I just wanted to respond to the point about New
York's homicide rate. New York's homicide rate has declined
more than any other homicide rate in the United States since
1991 through 2004. There were no executions during that period.
And we have actually done a head-to-head comparison both at the
county level, comparing the big cities in Texas with New York
City, but also the Statewide comparisons, and it is bigger in
New York. We have this in print in our studies. Professor Frank
Zimring has a book coming out on the crime decline that shows
that New York's crime decline is enormous, far greater by a
factor that he counts as almost half compared to any other
State in the country.
Mr. McAdams. He may be right, because the data I looked at
may not have included New York because it had no executions. So
I will, to a degree, back off of my statement. The data that I
looked at only included States that had at least some
executions, so it is conceivable that he is right.
Chairman Brownback. All right. Then we will need to look at
that ourselves a little bit further.
Mr. McAdams, I want to give you a chance, and I will give
this back and forth, to respond to some of Mr. Bright's
statements on his basis of where he comes from, because you
took a much narrower focus in the time period and I would like
to get your response, if I could.
Mr. McAdams. Well, what particularly that he said?
Chairman Brownback. I think he took on four or five
different topics within it and you were addressing two of them.
Mr. McAdams. Well, he talked about quality of counsel, for
example, and I think it is important to understand that States
have made a lot of progress in guaranteeing fair trials for
people accused of murder and subject to the death penalty, but
much less progress in protecting the due process rights of
people charged with non-capital murder.
For example, there is an interesting article in the Indiana
Lawyer about the situation in Indiana and it is terribly
expensive to execute people in Indiana, partly because of
endless appeals that are basically dead weight loss that have
nothing much to do with justice. But on the other hand, in
Indiana, criminal rules require that a death penalty-eligible
defendant have two death penalty-certified attorneys paid for
at the public dime and they can put in as many hours as they
want to, essentially, and bill the State for it. If you are
charged with murder and you are not subject to the death
penalty, you get a public defender who may have 130, 150 cases
a year. They get, for example, routine access to DNA experts,
money for investigators, money for mitigation experts, et
cetera, OK. This is in Indiana. But that doesn't apply if you
are simply charged with non-capital murder in Indiana.
The truth is that, first of all, this is a reason to
believe that the death penalty is fairer than alternative
punishments. That is to say, we hear a lot about due process
when people are subject to the death penalty, but the truth is,
it is too easy to put people in jail for life. People who are
subject to being put in jail for life should get many more of
the protections that people subject to the death penalty get.
Chairman Brownback. Mr. Bright, in your testimony you wrote
that capital punishment is not needed to protect society or to
punish offenders. Do you feel there ever to be a situation
warranting the death penalty in this country?
Mr. Bright. Senator, I don't, no, I mean, for a variety of
reasons. I mean, one is just the culture of life reason, that
if we are going to respect life and if we are going to set an
example for our children, we don't have the death penalty. Even
if I didn't feel that way, if I thought philosophically there
was no problem with it, the way it works in practice, I find to
be so disturbing, and I think, too, we ought to have some
humility about our system and just realize what the courts can
and can't do. If we are conservative, we know that the
government can only do so much, and if people are upset about
how the government has mishandled some other things, come down
to the courthouse, because unfortunately, there is a very vast
number of people being forced into the criminal courts.
I would agree, I think Dr. McAdams and I agree on this
point. I think the death penalty is sucking so much of the
resources out of the system in some States, the ones that are
taking it seriously and are providing counsel, the death
penalty counsel and that sort of thing, that it is having an
adverse effect on the rest of the criminal justice system,
which is already pretty hard up to begin with. So I think that
is true.
I think there is a--different States, I think there are
some, like you look at New York, New Jersey, some of these
States spend a great deal of money on the death penalty. They
don't have one execution to show for it, New York after ten
years, New Jersey since 1983, your State, 10 years of the death
penalty, eight people, 100 death sentences, nobody executed. It
is an awful lot of time and money without much at the end, and
it does have, I think, an effect on the other cases.
Then there are those cases--or States, excuse me,
jurisdictions, where people are not being--I was a court-
appointed lawyer, too, by the way, for a long time. There are
good and bad court-appointed lawyers. But if you have court-
appointed lawyers with high caseloads, low pay, lack of
resources, you are going to get what you pay for, and we have
that.
And we have had, like in Texas, for example, there have
been four people who got executed without any State or Federal
review of their case, post-conviction review, because the
lawyers didn't even know that there was a statute of
limitations, so they missed the statute of limitations. That is
pretty bad lawyering. I mean, a medical malpractice case, I
mean, just about any kind of case, you should know the statute
of limitations, and yet those people weren't even aware that
they existed. So that is not good lawyering, and unfortunately,
there is a lot of that in these cases.
Chairman Brownback. Senator Feingold?
Senator Feingold. Mr. Chairman, before I start, Professor
McAdams shared his views on the exoneree list maintained by the
Death Penalty Information Center. I think it would be
appropriate, if it is acceptable to you, to allow the Center to
provide a written statement in response to his testimony for
the record of this hearing, if there is no objection.
Chairman Brownback. To what?
Senator Feingold. To allow them to write a written
statement in response to his comments.
Chairman Brownback. I have no objection.
Senator Feingold. Thank you, Mr. Chairman.
Mr. Bright, I was also struck by the Birmingham News
editorial that you submitted with your testimony that you
mentioned in which the newspaper announced it was changing
sides in the debate on capital punishment and could no longer
support the death penalty. Another thing that the editorial
said is, quote, ``it is better to be rich and guilty than
innocent and poor,'' unquote, and you touched on these issues a
bit in your statement, but I would like you to talk a little
bit more about how a criminal defendants' economic situation
affects his access to justice in our system.
Mr. Bright. Thank you, Senator. yes, and I would say
Alabama is a classic example of what I was talking to the
Chairman about in terms of quality of lawyering. There is no
Capital Defender Office in Alabama. In fact, there are almost
no Public Defender Offices in Alabama. Most people who are
facing the death penalty there, and this is not just Alabama,
in a number of other States, as well, are going to be assigned
a lawyer who may, as in the example I gave, be a lawyer who
specializes in something other than criminal law, has no idea
how to try a death penalty case.
We operate on this fiction that any lawyer can try a death
penalty case, that we can appoint a lawyer and they can try the
case, which is sort of like saying any chiropractor can do
brain surgery, because many of the lawyers are acting in good
faith, they are doing the best that they can, they just simply
don't know what they are doing because it is not what they do.
They do divorces and title searches and those kinds of things.
The old adage, you get what you pay for, I think is very true
here.
The other point that I would make is just resources. Back
in the old days, it may have been we didn't need a lot of
expert witnesses, forensic witnesses, that sort of thing. That
is not true today, particularly in homicide cases. The defense
needs resources.
Georgia put to death a man last year whose lawyer was
appointed 36 days before trial and not given a penny. Thirty-6
days later, the case goes to trial. This lawyer is totally
unprepared. The client is sentenced to death, and he was put
down, tied down and put down last year. That is simply not
justice under any stretch of the imagination, no matter how
conscientious the lawyer was. I know that lawyer. He didn't
want to do a bad job. He couldn't do a good job in those
circumstances.
Senator Feingold. Thank you. Professor Fagan, I would like
to explore your testimony about the alternative of life without
parole. You mentioned the recent studies arguing that capital
punishment has a deterrent effect do not take into account the
possibility of life without parole. If the studies do not
account for the possible deterrent effect of life without
parole, how can they accurately predict the deterrent effect of
capital punishment?
Mr. Fagan. Well, the question of predicting deterrence
itself is a difficult question. One of the very hard things to
do in deterrence research is to actually show that the
perceived risk of a defendant is actually internalized, that
that person has seen it, they have weighed the consequences,
that it factors into their decisions.
Many of the homicides that do occur, even if somebody is
cognizant of the risks, are the kinds of homicides that occur
that, first of all, might never be subject to a felony murder
rule and would be punishable, but certainly would be the kinds
where the arousal of the situation with the context, a crime of
passion, for example, would neutralize whatever perceived or
internalized risk there is.
I think it is very hard to study that kind of risk. I think
that it is a black box that is often inferred by the kinds of
research that I do and also Professor Rubin does. Very rarely
are there direct tests of deterrence. Very rarely is there a
connection made between the perceived risk that the defendant
expresses and their future behavior. This can be done in
artifactual settings that don't approximate the kinds of
situations where homicides tend to take place. We can show this
in laboratory studies and the like.
We are involved in a study now in Chicago, though, where
there actually is a very direct test of deterrence involving
gun offenders. This is through the Department of Justice
Project Safe Neighborhoods study, and in Chicago, they actually
get all the gun offenders together and put them in a room and
they give them two messages. One, if we catch you with a gun,
we are going to put you away in prison for 10 years or more.
Two, if you need help, we are here to give you help. The room
is packed with both probation officers, but also service
providers. We are in the process now of doing a survey of the
defendants to ask them about this perceived threat, because the
numbers are saying very clearly that there is a dramatic
decline in all manner of gun violence in the neighborhoods
where the project is in effect.
Our studies suggest that where there is a direct measure of
deterrence, where the offenders do express that they have been
exposed to that deterrent threat, that there is some
consequence for their behavior. But we have it--this is not
homicide, of course, but we do have some sense that that is the
case. We don't have this sense in capital punishment. It is
extremely hard to do.
It is extremely hard to do with the LWOP sentences, and I
wanted to respond to one comment from Professor Rubin. In the
States where both execution and life without parole are
available, we don't know the effects of life without parole
because it is extremely hard to count the number of sentences.
In my testimony, I give some evidence from Pennsylvania,
California, a number of other States, about the relative
magnitude of people on death row compared to the number of
people incarcerated for life without parole and it runs
anywhere from six to ten to one. But we don't--we can't,
because we can't get an accurate count over a long time period
of using the kinds of panel studies that I do and Professor
Rubin does that allow us to take that factor into account. So
it is a missing factor.
It is like trying to evaluate the Steelers as a team
without taking into account their defense and just gauging them
on how well their offense is doing. I think we need to know
what happens on both sides of the football.
Senator Feingold. A timely analogy.
Let me followup. Professor Fagan, you testimony also
explained that the States and local communities pay a higher
financial price when an individual is sentenced to death rather
than life without parole. Obviously, some people may find that
counterintuitive. Could you say a little bit more why capital
cases do cost so much more?
Mr. Fagan. Well, I would actually hope that Mr. Bright
would help me on this. In our studies, we have looked--we have
been reading the literature. These were studies done, and there
was a very comprehensive study done in Florida where they went
to each of the county offices and asked them about their
allocation of resources for capital cases and they came up with
some very strong numbers based on a sample of counties in
Florida.
We looked at the expenditures in New York State in the
Capital Defender Office, which was funded at a very high level
of competence and with a very high standard for effective
counsel when New York's death penalty law went into effect in
1995 and we looked at the expenditures there. And so we got a
pretty good bounding, an upper and a lower bounding of the cost
estimates that are involved, and to meet constitutional
standards for defense, competent counsel, full access to
testing, and so on, and for prosecutors to pursue the same set
of standards, to prove beyond a reasonable doubt, requires a
great deal of resources. These are resources that run--the
numbers speak to themselves. They are fairly high.
And in small counties--there was a very interesting article
in the Houston Chronicle very recently about how the local
prosecutor was bragging about the fact that he had almost
unlimited access to public funds to pursue prosecutions. That
is not the case in most counties and most counties have to make
very difficult tradeoffs between schools, hospitals,
infrastructure of all manner, and public defender services and
prosecution services in these cases. The risks are then spread
around the State often because the county can't afford it. They
have to go to the State legislature or to other pools. And so
somebody in a remote county that is maybe the other side of the
State is paying for prosecution of somebody in the other corner
of the State and that prosecution may or may not turn out to be
effective and that prosecution may or may not turn out to be
reversed, and we find fairly high reversal rates that are
fairly consistent.
Again, it is a choice. It is a choice about how to use
public resources and what the consequences and outcomes of
those choices are. In our case, we seem to think that you can
achieve the same deterrent effect--or we certainly think that
the deterrent effects are at least as great by long-term
incarceration via LWOP at a far reduced cost.
Senator Feingold. I am glad you made the point about all
government costs obviously involve tradeoffs. Just specifically
from a public safety perspective, the extra dollars that the
capital cases cost could perhaps be spent otherwise on
additional police officers and other ways to prevent some
horrible crime from being committed in the first place. That is
one way we can look at this.
Mr. Fagan. When Professor Liebman and I did our study, it
was fairly clear that the States that use the death penalty the
most are the States that seem to have the most inefficient
criminal justice systems. Where States have fairly effective
clearance rates, where the number of arrests per crime is
fairly high, where the number of prosecutions per crime is
fairly high, then those States use the death penalty in violent
cases and in murders far less often than do States where the
clearance rates are very low.
We tended to see capital punishment, therefore, as a
compensatory system which was adjusting for the effects of
essentially a weak law enforcement and prosecution system. It
is a whole lot cheaper to make investments in a law enforcement
system that would benefit not just people who were possibly at
risk for homicide, but robbery, burglary, car theft, and many
other serious crimes.
Senator Feingold. Mr. Chairman, my time is almost up in
this round. I will have a few more later.
Chairman Brownback. OK. I just have a couple here.
Mr. Rubin, I want to ask you an off-the-wall question. I am
struck by the economic analysis of the death penalty, or, I
mean, using that framework. I am used to monetary signals being
sent and people reacting to monetary signals, and so when you
send punishment signals, it sounds like the same sort of
models. It strikes me as a little odd, but I understand it, and
apparently there are some pretty good rationale and basis for
being able to use that.
One of the things that I cited in my opening and one of the
things that has been most--that I have had the most
intellectual pursuit as far as just internally on this is that
I desperately believe we need to establish a culture of life in
this country, that we really need to celebrate life. Senator
Feingold and I have been in spirited debates on what this
actually means on one end of the spectrum, on purely innocent
life but at very early stages, obviously, the issue of
abortion.
And yet we talk about it then on this stage of life and the
same discussion and debate enters in then, too, about culture
of life and what many would refer to. Well, now this is not
purely innocent life as that in the womb. This is a life that
in all probability has committed a heinous crime, so people
raise that question in the debate about you really can't
compare these two.
But could you construct in a sort of economic analysis
about whether this does help to establish a culture of life,
that celebrates life, if you don't have a death penalty? Is it
somehow translatable within the culture writ large or into a
narrower State or into a community that you could construct
that, because that debate is made, and I am familiar with it
from a mental sense, a moral sense, a spiritual sense, but what
about from a modeling sense that you work in?
Mr. Rubin. Well, it is getting a bit far from my work as an
economist, but I think two things you might say. One would be
that if there is a deterrent effect and if it is significant
and if you are net saving lives, then the capital punishment
will be consistent with a culture of life in that sense. There
was a recent paper in the Stanford Law Review by Professor Cass
Sunstein and Adrian Vermeule. Professor Sunstein is in Chicago
and is not known as a conservative, but they were saying the
same thing, that if there is deterrence, if there is evidence
of deterrence, then as a society we might have a moral
obligation to undertake capital punishment. So they were making
that kind of argument, not at all from a conservative position
but just saying, if these studies are correct, then we would
have to really consider that.
I guess one could also argue that if you say we treat life
as being so valuable and that we are going to punish people who
take life, that could also be, in my mind, consistent with a
culture of life. But I would be more comfortable with the
deterrence argument. If, net, you are saying move lives than
you are losing, then it seems to me it is consistent with a
culture of life.
Mr. Bright. Could I offer this in response to that, Mr.
Chairman?
Chairman Brownback. Yes.
Mr. Bright. To really have a deterrent effect, I mean, we
have had an average of 33 death sentences a year in these 30
years. A lot of people think we impose the death penalty all
the time. It is actually 1 percent of the murders in this
country are punished with death. If we are going to have a
deterrent effect, if we are going to stop 18 every time if this
is true, which I don't for a reason I will tell you, we are
going to have to have a culture of death. I mean, we are going
to have to use the death penalty all the time because the
people I have represented over the last 30 years and talked to,
they are not watching television. They are not reading the
newspaper. They are not paying any attention. Right now in
Texas, they have shown that people in Huntsville don't even
know when there is an execution taking place in their town.
It would seem to me that any argument--I will let them
fight about the statistics, but from a basic fundamental
standpoint, you can't be deterred about something you don't
know anything about. If you don't know that there has been an
execution, you can't be deterred by the execution, and there
are only five States that have executed more than 50 people and
have carried out about 65 percent of all the executions in the
country.
So if that is really true, we would have to have New
Hampshire and Kansas and all these other States just executing
a lot of people in hopes that people out there would realize
that they might get executed if they went there. But to figure
that out, you would have to know, well, I am going to get
caught, which nobody thinks they are. I am going to get not
very good legal representation. I am going to get in one of
those jurisdictions where the prosecutor seeks the death
penalty, and make a lot of other considerations and
calculations that most people that get arrested for murder
don't make.
Chairman Brownback. Yes, please, and then I am going to
turn the microphone over to Senator Feingold. I don't know if
you wanted to go down to the Alito swearing in or not.
[Laughter.]
Senator Feingold. I wished him well last night.
Chairman Brownback. OK, then I am going to let you close
the hearing on out after that. Dr. Rubin, you wanted a quick
response.
Mr. Rubin. Just one quick response. It is not too good to
look for deterrence by questioning people who have committed
the crime. Those are the people who were not deterred. The
people who are deterred, if there are people deterred, are
people who Mr. Bright would never see because they are people
who have not committed the crime. So it is basically a flawed
research method to go to criminals and say, ``Were you
deterred?'' No, obviously not. It is the people who are not in
jail, who did not commit the crimes, that were deterred and you
won't see them.
Mr. McAdams. Can I make one quick comment about a culture
of life?
Chairman Brownback. Yes.
Mr. McAdams. I think it has got to be incoherent unless you
distinguish between the innocents and the aggressors. When we
and our allies invaded Europe in 1944, were we promoting a
culture of life or were we contradicting a culture of life? In
spite of the nastiness of any invasion and killing a lot of
people, I think, ultimately, we were promoting a culture of
life by taking out a Nazi regime that was completely--not only
didn't care about life, but actually gloried in killing
millions of Jews. So I think sometimes promoting a culture of
life can involve some pretty nasty things we have to do, but I
think we have to do it sometimes.
Chairman Brownback. I would note that we will keep the
record open for a period of 7 days that there may be a
submission of additional questions to witnesses and other
materials can be entered into the record.
Senator Feingold?
Senator Feingold. [Presiding.] Thank you, Mr. Chairman. I
do thank you again for holding this excellent hearing. Just a
couple more questions.
Mr. Bright, let us talk just a bit about the difficulty
individuals on death row can face in attempting to prove that
they are innocent. Of course, many cases do not have DNA
evidence that can definitely prove that a particular person is
innocent or guilty, and I know there have been capital cases
where new evidence is not unearthed until years after the
conviction. In your work, have you experienced procedural
barriers to bringing proof of innocence to the attention of a
court, and how do we ensure that potentially exculpatory
evidence can be brought to a court in a speedy manner?
Mr. Bright. Well, those are the most troubling cases,
Senator, where a person is convicted based on the evidence that
is available. It may not be very strong evidence. It may be
circumstantial evidence, but it is enough to get a conviction.
And then years later, some other evidence comes along that
undermines that and you don't go back to the jury and retry the
case.
There is a case before the Supreme Court right now where a
man was convicted in Tennessee and part of the prosecution was
there were semen stains on the gown of the victim and the
prosecution argued to the jury in closing they were his. Well,
now we know from DNA evidence beyond any question they were the
husband's. They weren't his. Well, are we going to go back and
give him a new trial? No. At least that is what the Sixth
Circuit said. We are not going to even give him a hearing on
whether or not he gets to have a new trial because of all the
barriers that we have added now to habeas corpus review in this
country.
But I think that is not an unusual situation, that evidence
comes to light later. The Schlup case in Missouri, where the
fellow had been convicted and then right before he was to be
executed, some guard in a moment of conscience said, ``Well,
actually, there is a videotape that shows that this fellow was
somewhere else in the prison at the time the murder went down,
so you had better take a look at it.'' Now, that was just in
the nick of time.
The other part of it is that when you don't have DNA
evidence--DNA evidence proves things generally, with a few
qualifications, pretty conclusively. The troubling areas are
the things like eyewitness identification. We know witnesses
make a lot of mistakes, but everybody believes that they are
100 percent right. Informants who are used in these cases who
testify, trade their testimony for something else.
Unfortunately, one of the reasons a lot of people end up on
death row is they don't have anything to trade.
This Rudolph guy who killed a person in Alabama, blew up
the bomb at the Olympics, I mean, he could tell them where the
dynamite was, so he gets a life sentence, which goes back to my
point about this is not essential that we have this because if
we did, we would sure give it to him. But he is serving a life
sentence because he could trade something away, whereas some
other people come along and they can't trade anything away, so
they don't have that same opportunity.
Senator Feingold. It is interesting you gave that first
example because it was just that kind of example that I asked
Judge Alito and could not get a good response to the issue of
the rights of a person who is clearly innocent and the process
has already run its course, and one of the reasons I couldn't
support him and I am not going down to the swearing in. I
certainly respect him, but it is a very troubling area.
Professor, did you want to say something?
Mr. Fagan. Yes. There has been much made about DNA evidence
as possibly helping us sort out the guilty from the innocent on
capital cases, but I think it is important to note in the over
100 exonerations that have taken place from death row, a very
small fraction of those are DNA exonerations.
Senator Feingold. Yes.
Mr. Fagan. Most of them are exonerations due to new
witnesses, new evidence, recanting of testimony, and the like.
So to say that DNA is going to solve the problem of innocence
is, I think, misleading.
Mr. McAdams. Senator, can I say something about this point?
Senator Feingold. Go ahead, especially in light of your
home State, as well.
Mr. McAdams. Thank you. I do think the death penalty
opponents have a bit of a double standard about eyewitness
testimony. They are absolutely right that witnesses tend to
over-value eyewitness testimony. It is much more frail than
witnesses seem to believe. That is endemic to our system of
jury trials at every level, death penalty and below. That is a
good reason to see that, for example, defense counsel have
access and can put on the stand expert witnesses about
eyewitness testimony.
However, the claims made by death penalty opponents about
how somebody came forward years later to exculpate this
particular person, or someone confessed, there are equal
problems with that kind of testimony. I can name you one guy,
for example, who has confessed to being the grassy knoll
shooter in Dallas on November 22, 1963. He is in Statesville
Prison in Illinois right now. Another young man confessed that
his father was the grassy knoll shooter. Another woman I could
name has confessed to being Lee Harvey Oswald's mistress in New
Orleans in the summer of 1963. All three confessions, claims,
are pretty obviously bogus.
So the frailty of witness testimony not only applies at
trial, and they are quite right about that, but it also applies
to years later claims that this person has been exonerated
because some witness changed their testimony or someone came
forward and confessed.
Senator Feingold. But it is only in death penalty cases
where the frailty can lead to somebody being executed, right?
Mr. McAdams. That is true, except I think there is a
fundamental problem here in that we seem to be so transfixed
with the death penalty that--well, for example, we are told, in
effect, let us save a lot of money by not charging anybody with
capital murder and let us just try to put them away for life.
Again, some of the costs associated with the death penalty are
dead weight loss, appeal after appeal after appeal, where you
try to find a judge who will let your person off. As Professor
Fagan has shown, if you go through enough judges, eventually,
you are likely to find someone.
Others, however, are expenditures that really have
something to do with obtaining justice, and I talked about the
Indiana case. If you are accused in Indiana of capital murder,
you can hire two lawyers. They can bill the State by the hour.
You have access to routine DNA testing. You have access to
expert witnesses, et cetera. All of that expenditure actually
tends to achieve justice.
So what they are saying is let us save money by dumping
what would be capital defendants back in a system where we can
save a lot of money because they don't get nearly as much due
process and nearly as good of defense, and that is what I think
is wrong with that argument.
Mr. Bright. Well, I don't think that is right by any--
Senator Feingold. Your comment will be the last one. Go
right ahead.
Mr. Bright [continuing]. Stretch of the imagination. I just
want to say this. Dr. McAdams has said twice now that the
appeals are endless and are dead weight. Let me tell you, there
are people who are alive today because Federal judges and the
Supreme Court of the United States found on those appeals that
they were sentenced to death in violation of the Constitution
of the United States. How that is dead weight is beyond me.
And the second thing I would say is with regard to people
coming forward, generally what happens is a lawyer comes
forward and then finds the witness and brings into the equation
the people that should have been there to begin with, and that
is where you have the question of what kind of representation
do they get at trial and now what is available here and how do
you put those two together to try to figure out what happened.
Thank you very much, Senator.
Senator Feingold. Thank you. On behalf of the Chairman and
myself and the Committee, we want to thank all of you very much
for your testimony. It was an excellent panel.
This concludes the hearing.
[Whereupon, at 3:25 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
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