Shocking Proposal

California has a serious budget crisis – projected spending is 15.2 billion (with a “B”) dollars in excess of available and projected funds. Here’s the hard truth: we will have to raise taxes, cut spending, or have some combination of both. There are no other alternatives. We got royally screwed when property values collapsed so suddenly, and that is the extent of our revenue shortfall.

I’d prefer we cut spending a hell of a lot more than we raise taxes. For that to happen, everyone has to be willing to make sacrifices in their particular spheres of influence and concern, to spread the pain around. For me, that’s the justice system, in particular the courts. Those who are in charge of the justice system need to do their part, like everyone else they must find ways tighten California’s belt so that the state’s bloated government can function. So…

<deep breath>

We should suspend capital punishment.

I do not make this suggestion out of a moral abhorrence of capital punishment. Certain kinds of murderers, the worst of the worst, richly deserve to have their lives taken and I have no problem whatsoever with the state bloodying its hands to make that happen. I am reasonably secure with the knowledge that the extensive appellate and habeas corpus review process filters out nearly any chance that innocent people are being sent to die in San Quentin’s execution chamber.

The problem is that the extensive appellate and habeas corpus review process necessary to support a system that includes capital punishment as a sentencing option is very expensive. That portion of having a death penalty, which is legally and morally indispensable, costs the taxpayers $125,000,000 a year.

So is the heightened security mandated for death row prisoners, the bulk of whom die of medical or natural causes before they are executed anyway. There are 30 prisoners on death row who have been there for more than 25 years; and over 115 who have been there more than 20. Additional savings could be realized by downgrading these prisoners to life without possibility of parole, and therefore permitting them to be transferred to prisons where their upkeep costs would not be so high. Murder trials would not be as expensive or time-consuming. All told, we’d save $150 million or more every year if we didn’t have to do all the things necessary to support this facet of the criminal justice system.

Now, I realize that this would only get us something like 1% to 1.5% of the amount of money we need to cover the shortfall. But every little bit gets us closer to closing the gap and we cannot simply lop fifteen billion dollars out of any particular part of the budget as a practical matter. So there can be no sacred cows, and we need to make unpleasant cuts and yes, the proposal is an unpleasant one for me to make. The pain involved here is less than is involved in a large number of other available options. Capital punishment exists for retributive and specific-deterrent purposes, not for general deterrence, so there would be no appreciable public safety impact.

Oh, by the way, the Governor can do this himself. With the stroke of his pen and without any review by the courts or the Legislature, he can use his Constitutional commutation power and lift at least that much burden off the justice system and its budget.

Bear in mind, I’m only suggesting that we suspend imposing capital punishment. When the state gets more money again in the future, I would advocate reinstating that facet of the criminal justice system because it is clearly what the people of the state would prefer to have in place.

Death as punishment is expensive; life imprisonment is cheaper. I’ve never disputed that point with advocates of abolishing the death penalty. But that is not a moral argument against capital punishment, it is an economic argument. Because we face desperate economic pressure in Sacramento, we Californians simply can’t afford the death penalty right now.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Cost Comparisons: Death Penalty Cases Vs Equivalent Life Sentence CasesDudley Sharp, Justice Matters, contact info belowIn comparing the cost of death penalty cases to other sentences, the studies are woefully incomplete. Generally, such studies have one or more of the following problems. 1) Most studies exclude the cost of geriatric care, recently found to be $60,000-$80,000/inmate/yr. A significant omission from life sentence costs. 2) All studies exclude the cost savings of the death penalty, which is the ONLY sentence which allows for a plea bargain to a maximum life sentence. Such plea bargains accrue as a cost benefit to the death penalty, such benefit being the cost of trials and appeals for every such plea bargain. The cost savings would be for trial and appeals, estimated at $500,000 to $1 million, which would accrue as a cost benefit/credit to the death penalty. Depending upon jurisdiction, this MIGHT result in a minimal cost differential between the two sanctions or an actual net cost benefit to the death penalty, depending upon how many LWOP cases are plea bargained and how many death penalty cases result in a death sentence. 3) FCC economist Dr. Paul Zimmerman finds that executions result in a huge cost benefit to society. “Specifically, it is estimated that each state execution deters somewhere between 3 and 25 murders per year (14 being the average). Assuming that the value of human life is approximately $5 million {i.e. the average of the range estimates provided by Viscussi (1993)}, our estimates imply that society avoids losing approximately $70 million per year on average at the current rate of execution all else equal.” The study used state level data from 1978 to 1997 for all 50 states (excluding Washington D.C.). (1) That is a cost benefit of $70 million per execution.  15 additional recent studies, inclusive of their defenses,  support the deterrent effect.  No cost study has included such calculations. Although we find it inappropriate to put a dollar value on life, evidently this is not uncommon for economists, insurers, etc.  We know that living murderers are infinitely more likely to harm and murder, again, than are executed murderers. There is no doubt that executions do save innocent lives. What value do you put on the lives saved? Certainly not less than $5 million. 4) a) Some studies compare the cost of a death penalty case, including pre trial, trial, appeals and incarceration, to only the cost of incarceration for 40 years, excluding all trial costs and appeals, for a life sentence. The much cited Texas “study” does this.  Hardly an apples to apples cost comparison.       b) The pure deception in some cost “studies” is overt. It has been claimed that it costs $3.2 million/execution in Florida. That “study” decided to add the cost of the entire death penalty system in Florida ($57 million), which included all of the death penalty cases and dividing that number by only the number of executions (18). One could just have easily stated that the cost of the estimated 200 death row inmates was $285,000 per case. 5) There is no reason for death penalty appeals to take longer than 7 years. All death penalty appeals, direct and writ, should travel through the process concurrently, thereby giving every appellate issue 7 years of consideration through both state and federal courts. There is no need for endless repetition and delay. This would result in a reduction in both adjudication and incarceration costs. Judges may be the most serious roadblock in timely resolution. They can and do hold up cases, inexcusably, for long periods of time.  Texas, which leads the nation in executions, by far, takes over 10 years, on average, to execute murderers. However, the state and federal courts, for that jurisdiction,  handle many cases. Texas has the second lowest rate of the courts overturning death penalty cases. Could every other jurisdiction process appeals in 7-10 years. Of course, if the justices would allow it. Justice6) The main reason sentences are given is because jurors find that it is the most just punishment available. No state, concerned with justice, will base a decision on cost alone. If they did, all cases would be plea bargained and every crime would have a probation option. 1). “State Executions, Deterrence and the Incidence of Murder”, Paul R. Zimmerman (, March 3. 2003, Social Science Research Network, copyright 2003-2008 Dudley SharpPermission for distribution of this document, in whole or in part,  is approved with proper attribution. Dudley Sharp, Justice Matterse-mail,  713-622-5491,Houston, Texas Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author. A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally. Pro death penalty sites  homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspxwww(dot)dpinfo.comwww(dot) (Sweden)www(dot)

  2. Excellent points! This is the sort of comment I dream about getting — substantive and clearly-written.Agreed on point #6 — as I wrote, people like the death penalty and are willing to pay for it. So in an ideal world, they would be able to spend their money on this and get it. I don’t think we can afford it anymore, though.#1 — My B.S. meter is going off here. Medical care in most prisons is so shitty that I have a very hard time believing that any prisoner gets this sort of care.#2 — How many cases in which the death penalty is requested result in plea bargains to life sentences? If the number is significant then I’d concede weight to this argument.#3 — I reject the notion that having the death penalty serves a general deterrence function. There is hardly a criminological consensus on this point, of course. Seems to me that if you’re going to kill, you’re going to kill for a powerful emotional reason and the threat of punishment does not enter into the mind as a result.#4 — I can see how advocates on either side of a debate would tweak numbers to lend strength to their side of the equation. This is called “lying with statistics.” Beware that your own invocation of numbers does not fall into this trap even as you criticize an opponent.#5 — I can sign off on capital punishment only if we’re damn sure that the condemned is actually guilty. Lengthy appeals are part of that process and I’m not willing to pick an arbitrary time like 7 years to reach that conclusion.Yours is a wonderful comment, dudleysharp. Thank you very much for stopping by and I hope you return for other topics beyond your sphere of advocacy!

  3. #1 — My B.S. meter is going off here. Medical care in most prisons is so shitty that I have a very hard time believing that any prisoner gets this sort of care.reply: unfortunately 7 of my links, confirming the cost issues, are now gone.but, here are two. I suspect this is easy to search. — How many cases in which the death penalty is requested result in plea bargains to life sentences? If the number is significant then I’d concede weight to this argument.reply: I don’t know of a database that tracks this. This will spur me to look.#3 — I reject the notion that having the death penalty serves a general deterrence function. There is hardly a criminological consensus on this point, of course. Seems to me that if you’re going to kill, you’re going to kill for a powerful emotional reason and the threat of punishment does not enter into the mind as a result.Reply: see next post#4 — I can see how advocates on either side of a debate would tweak numbers to lend strength to their side of the equation. This is called “lying with statistics.” Beware that your own invocation of numbers does not fall into this trap even as you criticize an opponent.reply: be specific#5 — I can sign off on capital punishment only if we’re damn sure that the condemned is actually guilty. Lengthy appeals are part of that process and I’m not willing to pick an arbitrary time like 7 years to reach that conclusion.reply: it is not, at all, arbitrary. Look at Virginia. 2 years at state level, 5 years at federal level, with writ and direct appeals going at the same time.Thank you.

  4. For some of the recent 16 deterrence studies, go to: Senate testimony Death Penalty as a Deterrent – Twelve (now 16) Recent StudiesDudley Sharp, Justice Matters, updated 82207CONTACT information for all of the study authors is within the footnotes"I oppose the death penalty. " " But my results show that the death penalty (deters) — what am I going to do, hide them?" "Science does really draw a conclusion. It did. There is no question about it." "The results are robust, they don't really go away" "The conclusion is there is a deterrent effect.". Prof. Naci Mocan, Economics Chairman, University of Colorado at Denver"Studies say death penalty deters crime", ROBERT TANNER, Associated Press, Jun 10, 2007, 2:01 PM ET(2003) Emory University Economics Department Chairman Hashem Dezhbakhsh and Emory Professors Paul Rubin and Joanna Shepherd state that "our results suggest that capital punishment has a strong deterrent effect.  An increase in any of the probabilities — arrest, sentencing or execution — tends to reduce the crime rate. In particular, each execution results, on average, in eighteen fewer murders — with a margin of error of plus or minus 10." (1) Their data base used nationwide data from 3,054 US counties from 1977-1996.(2003) University of Colorado (Denver) Economics Department Chairman Naci Mocan and Graduate Assistant R. Kaj Gottings found "a statistically significant relationship between executions, pardons and homicide. Specifically each additional execution reduces homicides by 5 to 6, and three additional pardons (commutations) generate 1 to 1.5 additional murders." Their "data set contains detailed information on the entire 6,143 death sentences between 1977 and 1997. (2)(2001) University of Houston Professors Dale Cloninger and Roberto Marchesini, found that death penalty moratoriums contribute to more homicides. They found: "The (Texas) execution hiatus (in 1996), therefore, appears to have spared few, if any, condemned prisoners while the citizens of Texas experienced a net 90 (to as many as 150) additional innocent lives lost to homicide. Politicians contemplating moratoriums may wish to consider the possibility that a seemingly innocuous moratorium on executions could very well come at a heavy cost." (3)(2001) SUNY (Buffalo) Professor Liu finds that legalizing the death penalty not only adds capital punishment as a deterrent but also increases the marginal productivity of other deterrence measures in reducing murder rates. "Abolishing the death penalty not only gets rid of a valuable deterrent, it also decreases the deterrent effect of other punishments." "The deterrent effects of the certainty and severity of punishments on murder are greater in retentionist (death penalty) states than in abolition (non death penalty) states." (4)(2003) Clemson U. Professor Shepherd  found that each execution results, on average, in five fewer murders. Longer waits on death row reduce the deterrent effect. Therefore, recent legislation to shorten the time prior to execution should increase deterrence and thus save more innocent lives. Moratoriums and other delays should put more innocents at risk. In addition, capital punishment  deters all kinds of murders, including crimes of passion and murders by intimates. Murders of both blacks and whites decrease after executions.  (5)  NOTE In a later review of individual state data, Shepherd found that for states executing less than once every 27 months, that there was no effect on murders or murders actually rose. Citations to follow.(2003) FCC economist Dr. Paul Zimmerman finds: "Specifically, it is estimated that each state execution deters somewhere between 3 and 25 murders per year (14 being the average). Assuming that the value of human life is approximately $5 million {i.e. the average of the range estimates provided by Viscussi (1993)}, our estimates imply that society avoids losing approximately $70 million per year on average at the current rate of execution all else equal." The study used state level data from 1978 to 1997 for all 50 states (excluding Washington D.C.). (6)(2003) Emory University Economics Department Chairman Hashem Dezhbakhsh and Clemson U. Professor Shepherd found that "The results are boldly clear: executions deter murders and murder rates increase substantially during moratoriums. The results are consistent across before-and-after comparisons and regressions regardless of the data's aggregation level, the time period, or the specific variable to measure executions." (7) (2005)  In a review of Illinois state data, University of Houston Professors Dale Cloninger and Roberto Marchesini found that 150 additional Illinois' citizens died, in a four year period because of Governor Ryan suspended executions and commuted all death sentences.  (Applied Economics, forthcoming  2006).  Criticisms rebutted and additional studies (2006) "This analysis shows that attempts to make the deterrence effect disappear are  ineffective." (p 16)—  Existence of the death penalty, in law, has a statistically significant impact on reducing murders. (p 23)—  Execution rates show significant impact in reducing murders. (p 13 & 23)—  Death row commutations, and other removals, increase murders. (p13 & 23)— The criticism of our studies is flawed and does not effect the strength of the measured deterrent effect. "The Impact of Incentives On Human Behavior: Can we Make It Disappear? The Case of the Death Penalty",  Naci H. Mocan, R. Kaj Grittings, NBER Working Paper, 10/06, www(dot) " . . . (Donohue and Wolfers' "D&W") criticisms of Zimmerman's analysis are misrepresentative, moot or unsupportable in terms of the analyses they perform."  "It is shown that Zimmerman's published empirical results, or the conclusions drawn from them, are not in any way refuted by D&W's critique." (pg 3)  "This later estimate suggests that each execution deters 14 murders on average . . .". (pg 7) "It is shown that D&W made a number of serious misinterpretations in their review of Zimmerman's study and that none of the analyses put forward by D&W (which ostensibly refute Zimmerman's original results and conclusions) hold up under scrutiny. (pg8) " . . . D&W do not even report Zimmerman's "preferred"  results correctly, and then proceed by carrying on this error throughout the remainder of their critique."(pg8) "Of course, (D&W's) omission tends to create a strong impression that Zimmerman's analysis 'purports to find reliable relationships between executions and homicides', when his actual conclusions regarding the deterrent effect of capital punishment are far more agnostic." (pg10) " . . . D&W's method of interpreting their results is not consistent with that proscribed by the received econometric literature on randomized testing . . .".  "As such, D&W's interpretation of their randomized test in itself does not (and cannot) reasonably lead one to conclude that Zimmerman's estimates suggesting a deterrent effect of capital punishment are spurious." (pg12) " . . . D&W do not appear to have interpreted their randomization test in any meaningful fashion." (pg14) " . . . the state clustering correction employed by D&W may not be producing statistically meaningful results." (pg16) "And while D&W once lamented that recent econometric studies purporting to demonstrate a deterrent effect of capital punishment yield 'heat rather than light', as shown herein, their criticisms of Zimmerman (2004) tend to yield 'smoke rather than fire'."(pg26)Zimmerman, Paul R., "On the Uses and 'Abuses' of Empirical Evidence inthe Death Penalty Debate" (November 2006).  ssrn(dot)com/abstract=948424(2007) "Had (D&W's) paper been subjected to the normal blind peer review process in an authoritative economic journal it is highly unlikely that it would have survived intact , if at all. " "(D&W's) Quibbling over numerous and sometimes meaningless statistical issues obscures the picture painted by the cumulative effect of the nearly dozen studies published since the turn of the 21st century."    "Using differing methodologies and data sets at least five groups of scholars each working independently (and often without knowledge of the others) have arrived at the same conclusion—there is significant and robust evidence that executions deter some homicides.  While there may be merit in some of (D&W's) specific criticisms, none addresses the totality of the collection of studies.  The probability that chance alone explains the coincidence of these virtually simultaneous conclusions is negligible." "DW’s unsupported claim that the appropriate variable in studies of deterrence using these borrowed tools from portfolio analysis is the amount or level of homicides in the respective jurisdictions.  This claim is without theoretical basis or empirical precedent. " "With regard to DW’s specific comments on our two papers (Cloninger & Marchesini, 2001 & 2006) we find very little requiring defense.  Implicit in their critique, and explicitly stated in private communications, DW were able to replicate our results based on data we furnished, at their request, as well as data they acquired independently. "  "Reflections on a Critique", Dale O Cloninger and Roberto Marchesini, forthcoming Applied Economic LettersThe findings for deterrence reflect reason, common sense and history. "According to the standard economic model of crime, a rational offender would respond to perceived costs and benefits of committing crime."  "Capital punishment is particularly significant in this context, because it represents a very high cost for committing murder (loss of life).  Thus, the presence of capital punishment in a state, or the frequency with which it is used, should unequivocally deter homicide." Furthermore, "an increase in pardons (commutations) implies a decrease in the probability of execution, which economic theory predicts should have a positive (increase) impact on murder rates." (8)Isaac Ehrlich (1975) provided the first systemic analysis of the relationship between capital punishment and the crime of murder along with the first empirical analysis of the deterrence hypothesis. He found that each execution deterred, on average, 8 murders. Many additional studies have found corroborating evidence supporting the deterrent effect of the death penalty —   from the United States  (Ehrlich, 1977,  Layson, 1985, Cloninger, 1992, Ehrlich and Liu, 1999, Dezhbakhsh et al, 2000) and Canada (Layson 1983) and the UK  (Wolpin, 1978). (9)Pubic policy makers take note.  Stopping executions will sacrifice innocent lives.  Reinstating capital punishment will spare more innocent lives.full reportTHE DETERRENT EFFECT OF THE DEATH PENALTYby Dudley Sharplast update 42707(contact info, below)". . . (E)ach execution results, on average, in eighteen fewer murders . . . ".DeterrenceThe potential for negative consequences deters some behavior.  The most severe criminal sanction — execution — does not contradict that finding. Reason, common sense, history and the weight of the studies support the deterrent effect of the death penalty.  The death penalty protects innocent lives. The absence of the death penalty sacrifices innocent lives.Is there any group, be they criminologists, historians, psychologists, economists, philosophers, physicians, journalists or criminals that does not recognize that the prospect of negative consequences constrains or deters the behavior of some?  Of course not — not even fiction writers so speculate.  Even irrational people wear seat belts, choose not to smoke and do not rob police stations because of the potential for negative consequences.I. Twelve Recent Deterrence Studies– The death penalty saves innocent livesAbovell. Historical supportReason, history and common sense all support that the potential for negative consequences deters or alters behavior. In short, incentives, negative or positive, matter. That is undisputed.Numerous, previous studies have also supported a deterrence finding. And the studies that find a deterrent effect of other criminal sanctions give additional support to the deterrent effect of the death penalty, because, if lesser sanctions deter, then we know that more severe sanctions also deter. The studies that find a deterrent effect of 1. increased police presence, or any other levels of security; 2. arrest/arrest rates; 3. criminal sentencing/incarceration terms; and 4. the presence of rules, laws and statutes all provide additional, collateral support for the deterrent effect of the death penalty. And there are likely hundreds, if not thousands, of such studies and examples (database in progress).lII.  Negative consequences matterMany have discounted a deterrent effect because of the irrationality of potential and active criminals.  However, both reason and the evidence support that the potential for negative consequences does affect criminal behavior.Criminals who try to conceal their crime do so for only one reason — fear of punishment.  Likely, more than 99% of all criminals, including capital murderers, act in such a fashion.  Fear of capture does not exist without an expectation of punishment.This doesn't mean that they sit down before every crime, most crimes or even their first crime, and contemplate a cost to benefit analysis of a criminal action.  Weighing negative consequences may be conscious or subconscious, thoughtful or instinctive.  And we instinctively know the potential negative consequences of some actions.  Even pathetically stupid or irrational criminals will demonstrate such obvious efforts to avoid detection.  And there is only one reason for that — fear of punishment.When dealing with less marginalized personalities, those who choose not to murder, such is a more reasoned group.  It would be illogical to assume that a more reasoned group would be less responsive to the potential for negative consequences.  Therefore, it would be illogical to assume that some potential murderers were not additionally deterred by the more severe punishment of execution.As legal writer and death penalty critic Stuart Taylor observes: "All criminal penalties are based on the incontestable theory that most (or at least many) criminals are somewhat rational actors who try so hard not to get caught because they would prefer not to be imprisoned. And most are even keener about staying alive than about avoiding incarceration."  (10)Based upon the overwhelming evidence that criminals do respond to the potential of negative consequences, reason supports that executions deter and that they are an enhanced deterrent over lesser punishments.IV.  The pre trial, trial and death row evidence –  the survival effectAt every level of the criminal justice process, virtually all criminals do everything they can to lessen possible punishments.  I estimate that less than 1% of all convicted capital murderers request a death sentence in the punishment phase of their trial.  The apprehended criminals' desire for lesser punishments is overwhelming and unchallenged.Of the 7300 inmates sentenced to death since 1973, 85, or 1.2% have waived remaining appeals and been executed. 98.8% have not waived appeals.  The evidence is overwhelming that murderers would rather live on death row than die.  Why?  The survival effect — life is preferred over death and death is feared more than life.  Even on death row, that is the rule.Even such marginalized personalities as capital murderers fear death more than imprisonment.  And that which we fear the most, deters the most. (kudos to Ernest van den Haag and many others)It is logical to conclude that some of those less marginalized personalities, who choose not to murder, also, overwhelmingly, fear death more than life, and, we, thus, logically conclude that some are deterred from murdering because of the enhanced deterrent effect of execution.The evidence for the survival effect in pretrial, trial and appeals is overwhelming and that weighs in favor of execution as a deterrent and as an enhanced deterrent over lesser sentences. V.  If unsure about deterrenceCommon sense, reason and history all support that the potential for negative consequences restricts the behavior of some.  But, if unsure of deterrence, we face the following dilemma — If executions do deter, halting executions causes more innocents to be murdered and gives those living murderers the opportunity to harm and murder again.  If the death penalty does not deter, and we do execute, we punish murderers as the jury deemed appropriate and we prevent those executed murderers from harming or murdering again.Oddly, death penalty opponents believe that the burden of proof is on those who say the death penalty is a deterrent.  Clearly it is not.  The weight of the evidence, within reason, history, common sense and the social sciences is that the potential for negative consequences restricts the behavior of some.  That is not in dispute.  Furthermore, if opponents cannot prove it is not a deterrent, which they never have and never will, then they are the ones who risk sacrificing innocents, both by absence of deterrence and reduced incapacitation.Regardless of jurisdiction, under all debated scenarios, more innocents are put at risk when we fail to execute.  Any alleged concern for innocents weighs in favor of executions.Vl.  The individual deterrent effectThe individual deterrent effect is represented by those who state that they were deterred from committing a murder only because of the prospects of a death sentence. Individual cases support the enhanced deterrent effect. (11)One Iowa prisoner, who escaped from a transportation van, with a number of other prisoners, stated that he made sure that the overpowered guards were not harmed, because of his fear of the death penalty in Texas.  The prisoners were being transported through Texas, on their way to New Mexico, when the escape occurred.  Most compelling is that he was a twice convicted murderer from a non death penalty state, Iowa. In addition, he was under the false impression that Texas had the death penalty for rape and, as a result, also protected the woman guard from assault. (12)New York Law School Professor Robert Blecker recorded his interview with a convicted murderer. The murderer robbed and killed drug dealers in Washington DC., where he was conscious that there was no death penalty.  He specifically did not murder a drug dealer in Virginia because, and only because, he envisioned himself strapped in the electric chair, which he had personally seen many times while imprisoned in Virginia. (13)Senator Dianne Feinstein explained, ''I remember well in the 1960s when I was sentencing a woman convicted of robbery in the first degree and I remember looking at her commitment sheet and I saw that she carried a weapon that was unloaded into a grocery store robbery.  I asked her the question: ‘Why was your gun unloaded?’ She said to me: ‘So I would not panic, kill somebody, and get the death penalty.’ That was firsthand testimony directly to me that the death penalty in place in California in the sixties was in fact a deterrent.''(13A)Logic requires that the individual deterrent effect cannot exist without the general deterrent effect.  Therefore, reason dictates that the general deterrent effect must exist. The question is not: "Does deterrence exist?"  It does. The issue is: "What is the quantifiable impact of deterrence?"Individual cases support the individual deterrent effect and such cases insure that general deterrence must exist.  And, for both, the evidence also suggests that executions provide enhanced deterrence over incarceration.VlI.  Conflicting studiesIn reviewing 30 years of deterrence studies, the strongest statement one may make against deterrence is that there is conflicting data (14).Yet, even when academic bias against capital punishment is overt, such as in the case of the American Society of Criminology — the subtitle to their death penalty resources page is "Anti-Capital Punishment Resources" — even they fail to state that the death penalty does not deter some potential murderers, only that "social science research has found no consistent evidence of crime deterrence through execution." (15) That is far from stating that executions do not deter.  And the criminologists are, very likely, that academic group most hostile toward the death penalty. What social science conflicts with the notion that the potential for negative consequences restrains the behavior of some? And most would agree that execution is the most serious negative consequence that a murderer may face.Numerous studies find that executions do deter.  And there is a rational conclusion based upon common experience.  It appears that all criminal sanctions deter some.  It would be irrational to conclude that the most severe and publicized sanction — execution — does not deter some potential murderers.Those studies which do not find deterrence say that they could not detect it, not that it doesn't exist.  Those studies which find for deterrence state such.As Professor Cloninger states: " . . .  (Our recent) study is but another on a growing list of empirical work that finds evidence consistent with the deterrence hypothesis.  These studies as a whole provide robust evidence — evidence obtained from a variety of different models, data sets and methodologies that yield the same conclusion. It is the cumulative effect of these studies that causes any neutral observer to pause." (16)Conflicting studies and reason both weigh in favor of the death penalty as a deterrent and as an enhanced deterrent over lesser punishments.VlII.  The brutalization effect of executionsSome, particularly death penalty opponents, find that the brutalization effect is more likely than the deterrent effect.  The brutalization effect finds that murders will increase because potential murderers will murder because of the example of state executions.Why would potential and active murderers be so influenced by the state in such a deep philosophical manner, revealed by brutalization, but they wouldn't be more affected by the simple "you murder, we execute you?"Death penalty opponents make an interesting about face on this issue.  They insist that criminals are so thoughtless and impulsive that they can't be affected by the potential of negative consequences but, then, those same opponents see criminals as so contemplative that their criminal actions increase BECAUSE those criminals follow the example of the state. One might ask those opponents: "Is there any other government action which influences criminals in such a fashion?"  Do criminals kidnap more BECAUSE the state increases incarceration rates?  Do criminals give money to potential victims BECAUSE the state donates to needy causes?Murder rates and execution ratesAlthough deterrence is much more than a simple look at only execution rates and murder rates, we do find that as executions have risen dramatically, the murder rate has plunged.From 1966-1980, a period which included our last national moratorium on executions (June 1967- January 1976), murders in the United States more than doubled from 11,040 to 23,040. The murder rate also nearly doubled, from 5.6 to 10.2/100,000.  During that 1966-1980 period, the US averaged 1 execution every 3 years, with a maximum of two executions per year.  From 1995-2000 executions averaged 71 per year, a 21,000% increase over the 1966-1980 period.  The US murder rate dropped from a high of 10.2/100,000 in 1980 to 5.5/100,000 in 2000 — a 46% reduction. The US murder rate is now at its lowest level since 1966 (17).The Texas example — The murder rate in Harris County (Houston), Texas has fallen 73% since executions resumed in 1982, through 2000, from 31/100,000 to 8.5/100,000 (18).  Harris County is, by far, the most active death penalty sentencing and execution jurisdiction in the US.  The Harris County murder rate dropped nearly 70% more than did the national murder rate, during similar periods. Texas' murder rate dropped 62% during that same period, or 41% more than the national average.Potential murderers may have been affected by the example of the state of Texas but, likely, not in a manner consistent with brutalization.  And "(t)he biggest decline in murder rates has occurred in states that aggressively use capital punishment." (19)After a thorough review of deterrence studies, Professor Samuel Cameron observed, "The brutalization idea is not one the economists have given any credence." "We must conclude that the deterrence effect dominates the opposing brutalization effect." (20)Reason, history, common sense and the studies weigh against the brutalization effect.lX.  The incapacitation effectThe incapacitation effect states that executed murderers cannot harm or murder again.  Reason dictates that living murderers are infinitely more likely to harm and murder again than are executed murderers.That obvious logic escapes death penalty opponents who say that we can have foolproof incarceration.  What hypocrisy.  This is the same group of folks who tell us that our system of justice is so fraught with error that we cannot possibly continue the death penalty.  Yet, the facts tell us that living murderers harm and murder again, in prison, after escape and after improper release.  Executed murderers do not.  In addition, the US death penalty appears to be that criminal justice sanction which is the least likely to convict the factually innocent and the most likely to remedy such rare error upon post conviction review. Stuart Taylor: "Statistical studies and common sense aside, it's undeniable that the death penalty saves some lives: those of the prison guards and other inmates who would otherwise be killed by murderers serving life sentences without parole, and of people who might otherwise encounter murderous escapees". (21)Under all circumstances, the execution of murderers will protect innocents at a higher rate than will incarceration.X.  Death Penalty OpponentsWhy is it that some death penalty opponents appear to laugh off any potential for a deterrent effect of executions?  Because to admit that executions deter some potential murderers would be to admit that, in reaching their goals, they will knowingly benefit murderers at the cost of sacrificing more innocent lives.  Of course, opponents will never prove it is not a deterrent and many will admit that executions do deter some.How many would still oppose executions if they knew that the evidence supported the deterrent effect and that many more innocents are put at risk by not executing?Stuart Taylor: "So those of us who lean against the death penalty must confront the very real possibility that abolishing it could lead to the violent deaths of unknown numbers of innocent men, women, and children. And those who are still skeptical that the death penalty deters any killings must also confront the risk-benefit calculus suggested by political scientist John McAdams of Marquette University: 'If we execute murderers, and there is, in fact, no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.'  " (22)Xl.  ConclusionThose of us who support execution do so because it is a just punishment.  The moral foundation for all punishments is that they are deserved.  One cannot support a punishment based upon deterrence alone.Reason, common sense and history all fall on the side of deterrence.  Be it Sweden or Rwanda, Texas or Michigan, Singapore or Chile, England or Japan, whether high crime rates or low, the death penalty will always deter some potential murderers.  Regardless of jurisdiction, the potential for negative outcomes will always restrict the behavior of some.  And, the weight of the evidence clearly supports execution as an enhanced deterrent.As Professor Rubin states, "Our evidence is that there are substantial benefits from executions and, thus, substantial costs of changing this policy (23).From Prof. Robert Blecker, New York Law School, "We support execution as a just and appropriate forfeiture of lives which deserve to be taken.  We also support execution as a just and appropriate method to save lives which deserve to be saved. " opyright 1998-2008 Dudley Sharp Dudley Sharp, Justice Matterse-mail,  713-622-5491,Houston, Texas 

  5. Found a couple more cost articles

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