The Death Penalty: Deterrence and Question of Racial Equality Law and Social Science L6172 Prof. Jeffrey Fagan March 6 2006 Vijay Singh

Gregg v. Georgia 428 U.S. 153 (1976) Facts: D was charged with armed robbery and murder Guilty: 2 counts of murder / 2 counts of armed robbery Sentenced to death Aggravating Circumstances: Committed in the course of a felony Committed for the purpose of receiving money

Furman: A precedent “It may be that we now possess all the proof that anyone could ever hope to assemble on the subject (deterrence and the death penalty). But, even if further proof were to be forthcoming, I believe there is more than enough evidence presently available for a decision in this case” – Justice Marshall’s concurrence in regards to Sellin study

Gregg: The court’s holding “The results have simply been inconclusive” - (Justice Stewart discussing statistical attempt to evaluate death penalty as deterrent) Court deferred judgment to state legislatures of policy rationale behind death penalty Held that the current Georgia system wasn’t as arbitrary as pre-Furman Therefore, no violation of 8th or 14th amendment

Dr. Ehrlich: His study Econometric Study performed by Dr. Isaac Ehrlich Hypothesis: “If the execution ‘risk’ declines, then the murder rate will go up” Universe: All murders from 1933-1969

What does all this mean?

Erlich and his critics… Period Effects Nationally Aggregated Data LWOP Effect? Reliability of Information Retest Troubles

Later attempts at perfection Other ways to conduct the study: Matching Similar to Sellin study, using similar states Local Deterrence / Temporary Effects - Some studies have shown that there is a deterrent effect close to execution site, for short times

Interested in reading more??? Prof. Fagan's Testimony Law and Econ View ??? More Studies...and Death Penalty Reading

McClesky v. Kemp 481 U.S. 279 (1987) Facts: D was charged with two counts of armed robbery and murder D was convicted and sentenced to death D filed petition for habeas corpus relief Challenged death penalty with 8th and 14th amendment

8th & 14th – The Constitution in Question 14th amendment – “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Washington v. Davis - Discriminatory intent necessary for equal protection claims 8th amendment – “nor cruel and unusual punishments inflicted” Zant (dicta) – Factors such as race are irrelevant to sentencing decisions and shouldn’t be considered Uncertainty over what standard of proof necessary

McClesky: The court’s holding Court of Appeals and SCOTUS accepted the study as true However, no discriminatory intent Concern over slippery slope

Proportionality Review Problems: Universe Problems Subjectivity Replication Solutions: Scale / Index Construction Objective criteria / Guidelines for judges

Dr. Baldus: His work and findings Commissioned by the LDF Two Parts: Procedure Charging and Sentencing Universe: 2,485 Post-Furman Cases in Georgia Most comprehensive study to date

What did he find?? Black D / White Victim 22% White D / White Victim Race of victim equal to: Multiple stabbings Serious (felony) prior record Armed robbery involved Prosecutorial Discretion More likely to seek death penalty Less likely to grant plea bargain 4% Black D’s / 7% White D’s Black D / White Victim 22% White D / White Victim 8% Black D / Black Victim 1% White D/ Black Victim 3%

Problems with mid-level cases

Problems with mid level cases

How bad is this study? Data in parole files was incomplete Differences in Coding Rebuttable Presumption

The Singh study ??? Wouldn’t change the method of the study much Challenge Jury Pool – Change of Venue “By so limiting capital punishment equal protection claims, the court in McClesky created a nearly insuperable barrier to proof.” - David Baldus on holding in McClesky

Going Forward Justice Powell Daubert standards Judicial Education ? “my understanding of statistical analysis ranges from limited to zero” Daubert standards Judicial Education ?