Analysis: Death Penalty Column Misses Some Marks

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Death Penalty

I read Rich Rifkin’s death penalty column with interest. He started it with a note that was interesting, pointing out that Prop. 62 asks voters to get rid of a “death penalty that we don’t have.”  I see the proposition somewhat differently – it aligns our laws with our practices and, despite Mr. Rifkin arguing that under Prop. 62 “not much will change,” he is flat out wrong.

His analysis is largely outcome-based, as it has been 38 years since the death penalty was instituted in California, only 13 have been executed, and none since 2006.

But the death penalty isn’t just an outcome, it is a process.  An expensive process.  A lengthy process.

Mr. Rifkin makes a good case for why he doesn’t “believe in California’s death penalty,” despite his overall support for the concept.  He argues that “the extreme delay removes the death penalty’s value as a deterrent.”  He also correctly notes that “when an inmate is killed, it feels arbitrary.”

He correctly points out that, while most opponents of capital punishment are opposed to it on moral grounds, Proposition 62 is based on practical rather than moral arguments.  There is a tactical element to that, not to mention you are not going to change people’s morality, as the death penalty is going to disappear because it doesn’t work.

He notes, “The official case in favor of 62 is focused on expense, DNA technology and the superiority of sentencing people to life without parole.”

This is where I start to part ways with Mr. Rifkin’s analysis.  He grants that “we would save some money in California if we got rid of the death penalty.”  The legislative analyst determined, “reduced costs would likely be around $150 million annually within a few years.”

However, then he attacks “left-wingers” for arguing in favor of cost consciousness.  He notes, “I certainly have never heard anyone on the anti-death penalty side call for competitive bidding in government contracting. That would save the state billions of dollars per year.”

The problem is that Mr. Rifkin is condensing this part of the argument down to cost rather than wasted resources – the problem here isn’t that it costs a lot, as there are things that cost a lot that many of us support.  The problem is that we are spending money, on a system that does not work, in a wasteful and inefficient way.  And I might add on – spending it on something that a good many of us believe is immoral

There are indeed conservatives and libertarians who have turned against the death penalty system based on the waste of money.  That doesn’t mean the proponents of Prop. 62 are advocating for maximizing government savings across the board.  Mr. Rifkin here is not making an argument against Prop. 62, he’s simply poking the left.

The DNA argument he next makes is important.  He calls it “even stranger,” but here he really failed to do the research.

The pro-62 side writes, “The risk of executing an innocent person is real… DNA technology and new evidence have proven the innocence of more than 150 people on death row (across the United States) after they were sentenced to death.”

He argues, “That says to me that because we have DNA technology, it is now less likely we will slay an innocent person. Those 150 were not killed. If our state executes anyone in the future, it will be more certain he was truly guilty.”

This is simply not true and it is a misunderstanding of wrongful convictions.

DNA Exonerations

This is a chart from the National Registry of Exonerations and it shows that, over time, the number of exonerations has greatly increased.  But the percentage of them based on DNA is quite low.  Between 25 and 30 of 2015’s exonerations were based on DNA evidence, but that is out of 150 or so.  That’s one out of six.

The advent of DNA has helped us prove beyond any doubt the presence of innocent people on death row, but the number of cases that have DNA evidence is so low, it is not having a practical impact on the number of wrongful convictions – and therefore DNA does not make it that much less likely that we will slay an innocent person.

In fact, in 2015, decades after the advent of DNA testing, we exonerated 150 people from wrongful convictions achieved despite the existence of DNA testing.  That is a scary number, but scarier still is that this represents the tip of the iceberg.

Research from Ronald Huff at Ohio State University conservatively estimated that 0.5 percent of the nearly 2 million convictions that occur in a given year are those of innocent people.  That number doesn’t sound like a lot until you realize that about 10,000 people each year are potentially wrongfully convicted and only 150 in 2015 were exonerated.

Mr. Rifkin then looks at the remedy, life without parole (LWOP).  He writes, “Under Prop. 62, the death penalty will be replaced with a strict life sentence. Those convicted of the worst crimes will never be released. Instead of being housed in expensive private cells on death row, murderers will be kept with other maximum-security inmates.”

He argues that locking people away for 60 to 80 years “strikes me as immoral.”

This is again where Mr. Rifkin would benefit from more research.  One of the biggest debates in the anti-death penalty community is over the issue of LWOP – not just LWOP but also the loss of automatic, state-funded appeals.

In 2012 when the last death penalty measure came on the ballot, most of the death row inmates and their families were opposed to it.  Why?  Because if they were wrongly accused, they lose their state-funded appellate attorneys.  So they would be stuck incarcerated in boxes for decades without the possibility of parole and without the hope of an appellate attorney getting their sentences overturned.

My hope would be that the legislature would use the $150 million in saving to create a system whereby cases could be evaluated and real claims of innocence would be eligible for state-funded defense, but that’s just a hope.

So yes, I think there is a real problem here with Prop. 62 and it comes down to weighing the current problems in the system with some of the unintended consequences for commuting all death sentences to LWOP.

Finally, we get to Prop. 66.  Mr. Rifkin writes, “There is a second death penalty initiative on our ballot — Proposition 66. Its sales pitch is ‘to speed up the death penalty appeals system while ensuring that no innocent person is ever executed.’”

He adds, “I am not sure Prop. 66 will work. But I’m willing to give it a try, because I continue to believe in a functioning death penalty for our most vicious killers.”

There are a lot of problems with Prop. 66.  First, I would argue it is probably not constitutional.  Second, it is infeasible – the state simply does not have the attorneys at its disposal to be able to run appeals at the rate that Prop. 66 would require.

Third, as the ACLU presentation I attended last week noted, while the initiative would possibly speed up the state level appellate process, that’s only part of the delay.  The other part is the federal process, which Prop. 66 would not impact.

Finally, the biggest problem with Prop. 66 is it doesn’t deal with the biggest problems of the death penalty.  First, the death penalty is geographically biased.  There are four counties in California that enact an overwhelming percentage of the death sentences.  So, if you commit the same crime in one county you get LWOP, and in another you get the death penalty.  That’s a problem if you are actually executing people.

Second, you have a race-based problem.  People are more likely to get the death penalty if they are people of color, but an even bigger factor is that people are more likely to get the death penalty if the victim is white rather than a person of color.

Third, you have the imbalance in resources – so people with more resources are more likely to get sentences other than death.

Finally, you have the problem of wrongful convictions and the length of time it takes to discover those wrongful convictions.

I think if Prop. 66 passes that it will get thrown out and, even if it does not, it will prove too difficult to implement.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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24 thoughts on “Analysis: Death Penalty Column Misses Some Marks”

  1. South of Davis

    David wrote:

    > However, then he attacks “left-wingers” for

    > arguing in favor of cost consciousness.

    Unlike Rich I do not feel that we should give the state the power to kill people “and” I am a fiscal conservative who spends as little money as possible (I have been riding my early 80’s bike to work every day this month with the nice weather and will be driving my early 90’s car once it starts raining) and I wish my state would also spend as little as possible (I will be voting yes on Prop. 62).

    In the last few days David has accused many people of “attacks” (taking aggressive action against) and “mocking” (making fun of someone or something in a cruel way).  I don’t think that Rich is being “aggressive” in any way when he points out that most (but not all) “left wingers” are using the “cost saving” argument in the same way that most (but not all) “right wingers” were using the “women’s health” argument to get rid of most abortion clinics in Texas.

    I hope David does not think that I am “mocking” or “attacking” either him or Rich since I think that both of them are smart and good writers.  I’m hoping that he can sit down and realize that every time someone “disagrees” (has a different opinion) they are not “attacking” (taking aggressive action against) the other person…

    1. David Greenwald Post author

      Oh come on. The use of left-winger was loaded language. He could have used the “left,” “liberal,” “progressive” or anti-Death Penalty activists. He chose left-winger. That was intentional. Is it egregious? No. But neither was my response (less than a sentence).

  2. South of Davis

    David wrote:

    > The use of left-winger was loaded language.

    Is the use of “right-winger” loaded language?

    One of your posts a while back included a quote by your “favorite contemporary American essayist, Richard Hofstadter” that said “In recent years, we have seen angry minds at work, mainly among extreme right-wingers”.

        1. David Greenwald Post author

          Do you believe that’s the point?

          I wrote 1400 words, you guys are focused on five and a very minor point which was that Rifkin used loaded language in his description. There are times to use that, I didn’t see the need to here.

        2. quielo

          OK David, I looked at different part. I am interested in the referenced research.

           

          “Research from Ronald Huff at Ohio State University conservatively estimated that 0.5 percent of the nearly 2 million convictions that occur in a given year are those of innocent people.  That number doesn’t sound like a lot until you realize that about 10,000 people each year are potentially wrongfully convicted and only 150 in 2015 were exonerated.”

          So I took a look at the summary@ https://researchnews.osu.edu/archive/ronhuff.htm.

          “The results are based on a survey of 188 judges, prosecuting attorneys, public defenders, sheriffs and police chiefs in Ohio and 41 state attorneys general. The study also found that the most important factor leading to wrongful conviction is eyewitness misidentification.”

          So far so good from my point of view. Eyewitnesses are compelling but not reliable IMHO. However after that Huff gets out onto a limb and at the risk of being banned I believe his assumptions are a little naughty.

          “The survey asked respondents to estimate the prevalence of wrongful conviction in the United States. About 72 percent estimated that less than 1 percent — but more than zero — of convictions were of innocent people. Based on these results, Huff estimated conservatively that 0.5 percent of the 1,993,880 convictions for index crimes in 1990 were of innocent people. (Index crimes, which are reported by the FBI, are murder and non-negligent manslaughter, forcible rape, aggravated assault, robbery, burglary, larceny-theft, motor vehicle theft and arson.) That would result in an estimated 9,969 wrongful convictions.”

          He does not provide any justification for this assumption much less why it is described as “conservative”. I could survey people and ask how many new cars they have bought in the last 10 years, 0-100, 101-500, or 500-1000. Almost everybody will be in the first bucket so I could “conservatively” estimate that the average person bought 50 new cars in the past 10 years. As any methodologist will tell you, if everyone is in one bucket, you have the wrong buckets.

          I don’t doubt that everybody agrees that the number of innocent people convicted is not 0, however this study does little to prove anything other than Huff is either incompetent or fraudulent.

           

           

        3. Davis Progressive

          not david, but think that’s a fair criticism of huff’s work.  that said, i think the biggest value is in illustrating just how many cases we would be talking about if the number of wrongful convictions were just a half of percent.  what if they are one in a thousand?  that still generates 2000 a year.  that’s a lot of people you are wrongfully incarcerating.  i think 0.5 percent is too high a number based on my experience.  for a lot of lawyers that would be multiple cases a year on average.  that’s too high.  i think most veteran lawyers can think of a few cases where they felt the defendant was convicted and should have gotten off, fewer still where they were convicted and were innocent.  still you had 150 exonerations last year and that number is still going up – that’s worrisome because for every guy you get off, there are ten maybe even 100 where there just isn’t enough information to re-open the case.

        4. quielo

          DP, this of course the great unknown and any attempt to answer it will not be definitive. I will say that while there are people who are factually innocent there are likely a much greater number of people who are guilty but perhaps not of what they were convicted of. The vagaries of charging are astounding and likely have a much greater impact on who spends what time in prison than who is innocent. Also one has to accept going that in many cases we will never really know whether someone is guilty “beyond a reasonable doubt” or not yet the cases need to be adjudicated anyway.

    1. tribeUSA

      Anger can be a very legitimate emotion. We have evolved into a species with a suite of emotions; each of which can be expressed in a very legitimate way. It seems to me that controlled anger can be a very constructive and creative force (as in seeking to correct injustices); and it is mainly uncontrolled/undisciplined anger that leads to violence and destruction.

  3. Davis Progressive

    it doesn’t seem like people care about the issue – they’d just rather be an irritant.  the most interesting thing is the automatic appeal.  i’m kind of torn on the issue myself – ending the death penalty would be good, but finding away to finance appeals is important.  too many wrongful convictions.

    prop 66 is a non-starter.  i don’t get why rifkin fell for it other than not doing any research at all.

        1. Barack Palin

          Well if the V is really interested in stopping this sort of stuff it has to be across the board and not just directed at conservative leaning commenters.

  4. Eric Gelber

     
    I find economic arguments for or against the death penalty to be irrelevant and somewhat macabre. The death penalty is, simply, barbaric. Amnesty International reports that 102 countries do not utilize the death penalty.  The countries with the most confirmed executions in 2015 were, in order, China, Iran, Pakistan, Saudi Arabia, the U.S., and Iraq. The most recent countries to abolish the death penalty are Bolivia, Congo, Fiji, Madagascar, and Suriname. Statistics on wrongful convictions and racially biased application only serve to underscore the inherent unjustness and wrongfulness of the death penalty.
     
    The problems with LWOP exist and should be addressed with or without abolishment of the death penalty. They are not arguments in favor of maintaining the death penalty.
     
    It is always interesting to me that so many individuals who call themselves pro-life or who use phrases like “all lives matter” also rationalize support of the death penalty.
     

    1. Barack Palin

      It is always interesting to me that so many individuals who call themselves pro-life or who use phrases like “all lives matter” also rationalize support of the death penalty.

      As it’s also interesting that so many individuals who are pro-abortion are against the death penalty

      1. Davis Progressive

        I find them very different issues.  it’s unfortunate that the anti-abortionists call themselves pro-life, because they are most not, but other than that, there is little in common in the two issues.

      2. Eric Gelber

        Thanks for the predictable, knee-jerk response. But I don’t know many people who are “pro-abortion”; although, I do know many who are in favor of women’s right to determine what to do with their own bodies. This is off-topic, however. I take responsibility.

        1. Barack Palin

          Are you referring to your predictable shot at people who are pro-life or say “all lives matter”?

          [moderator]To both of you: no more of this back and forth stuff, please.

      3. Tia Will

        BP

        As it’s also interesting that so many individuals who are pro-abortion are against the death penalty”

        I have worked in the field most relevant to abortion for the past 30 years and I have never met anyone who is “pro abortion”. There are many of us, who find abortion abhorrent, but acknowledge that we feel that way because of our own religious and/or moral beliefs, and believing firmly in our separation of church and state, acknowledge that we do not have the right to impose our religious beliefs upon others. There are many others of us ( I am one) who acknowledge that carrying a pregnancy to term is statistically more likely to result in the death or permanent disability of the mother than is abortion. This alone for me would mean that it is ultimately up to the women whether or not she wishes to assume this increased risk to her health and life.

        I also believe that the issue of abortion and that of capital punishment are two quite distinct different issues with different biologic, physiologic, psychologic, moral/ religious ramifications and so I agree that they really do not belong in the same discussion. Pardon my perpetuation of being off topic.

  5. WesC

    Years ago while working in a Calif prison a fellow nurse related to me how an inmate in her unit kept insisting to her that he was framed and did not do the armed robbery that he was convicted of. I don’t know what he expected her to do but after listening to his story multiple times she told him “ok I believe you, you didn’t do the robbery that you got convicted for, but how many robberies did you do that you never got caught for?”. His response was “about eight” She then told him that he should consider that he was convicted of a robbery that he did not do, but had actually committed eight robberies that he got away with, so he was actually ahead in the game and should consider himself pretty lucky.

  6. Tia Will

    WesC

    It’s an interesting anecdote. However, I think that it also tends to undermine the basis of our legal system. I think that too often, police, prosecutors, jurors and correctional officers have the underlying concept that while an accused may not be guilty of this crime….he must be guilty of something. I find this a very dangerous attitude, and I have heard it expressed a number of times.

  7. WesC

    In 20+ yrs of correctional nursing in county jails and prisons I have yet to meet a detainee/inmate who got caught the very first time they committed their preferred crime.  They usually have a pretty long streak of good luck before they get caught.

    I also believe their are no saints in this world and everyone has been guilty of some form of what legally constitutes a crime on multiple occasions during their lifetime.

    I think the attitude that they must be guilty of something so convicting them by whatever means available including withholding/fabricating evidence, giving deals to jailhouse informants to lie on the witness stand, etc points to how corrupted our criminal justice system has become.  The poor will do time, while the wealthy will magically become the ideal candidate for a reduced sentence, rehab, and/or dropped charges upon completing some sort of diversion program or or paying restitution. Shoplift $10 worth of food and go to prison. Embezzle $100000 and get an ankle bracelet and probation.

    My guess is that the DA/law enforcement knew/thought this inmate was a one man crime spree and fabricated/withheld evidence to get him off the streets.  This probably happens more often than most will admit. Having been on several juries I think the jury system is seriously flawed, but given how some judges are equally flawed I don’t know what an ideal alternative would be.

  8. Tia Will

    WesC

    Thanks for taking the time, especially in view of your extensive experience in this area, to write such a thoughtful response. It is much appreciated even though it leaves us at the same unsatisfactory spot of dealing with an extremely flawed judicial system with no clear idea of how to change it.

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