The penalty of death 9780803914537

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PENALTY

OF

DEATH

Thorsten Sellin With a New Foreword by Franklin E. Zimring

States With and Without the Death Penalty STATES WITH THE DEATH PENALTY t

V

Alabama

Louisiana

Pennsylvania

Arizona

Maryland

South Carolina

Arkansas

Mississippi

South Dakota

California

Missouri

Tennessee

Colorado

Montana

Delaware

Nebraska

Texas Utah

Florida

Nevada

Virginia

Georgia

New Hampshire

Washington

Idaho

North Carolina

Wyoming

Indiana

Ohio

Kansas

Oklahoma

ALSO

Kentucky

Oregon

-U.S. Gov’t - U.S. Military

STATES WITHOUT THE DEATH PENALTY (YEAR ABOLISHED IN PARENTHESES) Alaska (1957)

Minnesota (1911)

West Virginia (1965)

Connecticut** (2012)

New Jersey (2007)

Wisconsin (1853)

Hawaii (1957)

New Mexico* (2009)

Illinois (2011)

New York (2007)****

Iowa (1965) Maine (1887)

North Dakota (1973) Dist. of Columbia Rhode Island (1984)*** (1981)

Massachusetts (1984)

Vermont (1964)

ALSO

Michigan (1846) Source: Death Penalty Information Center, http://www.deathpenaltyinfo.org/ states-and-without-death-penalty *In March 2009, New Mexico voted to abolish the death penalty. However, the repeal was not retroactive, leaving two people on the state’s death row. **In April 2012, Connecticut voted to abolish the death penalty. However, the repeal was not retroactive, leaving 11 people on the state’s death row. ***In 1979, the Supreme Court of Rhode Island held that a statute making a death sentence mandatory for someone who killed a fellow prisoner was uncon¬ stitutional. The legislature removed the statute in 1984. ****In 2004, the New York Court of Appeals held that a portion of the state’s death penalty law was unconstitutional. In 2007, they ruled that their prior hold¬ ing applied to the last remaining person on the state’s death row. The legislature has voted down attempts to restore the statute.

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PENALTY OF

DEATH

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PENALTY DEATH

Thorsten Sellin With a New Foreword by Franklin E. Zimring

USAGE Los Angeles | London | New Delhi Singapore | Washington DC

(§SAGE Los Angeles | London | New Delhi Singapore | Washington DC

FOR INFORMATION:

Copyright © 2013 by SAGE Publications, Inc.

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CONTENTS Chapter Foreword

Page vii

Franklin E. Zimring

Preface

1

Introduction

3

1. The Divine Command: Death to the Wicked

9

2. Retribution: Success or Failure?

35

3. Unequal Justice

55

4. The Risk Factor

69

5. On General Deterrence

75

6. The Police and the Death Penalty

89

7. The Recidivism of Capital Murderers

103

8. A Matter of Rates

121

9. Experimenting with Death

139

10. The Twentieth Century

157

Index

181

About the Authors

191

FOREWORD Franklin E. Zimring

When a book about a major and rapidly changing issue like the death penalty is reissued a generation after it was first pub¬ lished, three questions should be asked: 1. What is so special about a volume first published in 1980 that it must be read by serious students of capital punish¬ ment a generation after it was written? 2. Which elements of the debate about state executions are the same in the second decade of the 21 st century as when Thorsten Sellin’s volume was first published in 1980? 3. What important changes have occurred in the practice of state execution and our knowledge about its social and political effects?

I. A LANDMARK VOLUME What sets The Penalty of Death apart from the hundreds of volumes about capital punishment that crowd American book¬ shelves is the special distinction of its author, the clear and accessible style of its prose, and the comprehensive range of the topics it covers. When Thorsten Sellin wrote this book, not only was he the leading sociological scholar of the death

•••

Vlll

THE PENALTY OF DEATH

penalty and deterrence in the world, but he had been the lead¬ ing scholar of that topic for nearly half a century. Sellin had joined the faculty of the University of Pennsylvania in 1922 and built at Penn the most distinguished criminology depart¬ ment in the United States. In his exploration of the death pen¬ alty and deterrence, Sellin had constructed a huge variety of tests of whether states with death penalties experience lower homicide rates than states without such penalties, including comparisons of contiguous states, homicide trends over time when death penalty policy changes, and analyses of special risk populations including murders by prisoners and killings of police. In 1951, Professor Sellin had presented evidence on deterrence to the British Royal Commission on Capital Punishment. In 1959, he published the expert’s report on the death penalty for the American Law Institute’s Model Penal Code. The volume he wrote for SAGE was his valedictory, a summation of a life’s work and thought about capital punish¬ ment written by a man in his 80s. The usual problem with summations of this sort by top scholars is inaccessible prose and complicated analysis. But not this book. Thorsten Sellin’s reasoning is transparent and easy to understand. His writing style is concise and straightfor¬ ward. This book shows the very rare combination of elegant analysis and accessible prose equaled in the social analysts of his era only by Robert K. Merton. The clarity and transparency of Sellin’s prose are evident in his extensive discussion of com¬ parisons over time and among contiguous states with different death penalty policies. There are no complicated statistics in the analyses, no obfuscation, no second- or third-order statisti¬ cal analysis. Everything is visible, including the limits of the available evidence. This talent of Professor Sellin for transparency and simplic¬ ity allowed him to write a short book that covers a huge range of topics. He discusses not only deterrence but retribution and unequal justice. And the style of Sellin’s analysis is to consistently remind the reader that the debate about death as a punishment and the movement away from state killing are both

Foreword

IX

long-range processes, best measured in centuries. This longrange perspective means that the book is as much concerned with Plato, Kant, and Durkheim as with the empirical literature of the 1970s, and this keeps most of the book from being dated by the passage of time since its first publication in 1980.

II. CONTINUITY IN THE DEATH PENALTY DEBATE In a media-driven culture that generates and publicizes vast quantities of new data each day, the idea of consulting social science and philosophy about capital punishment as written in 1980 might seem quaint to the casual observer. Aren’t our computers vastly better these days? Hasn’t that rendered the wisdom of the ages obsolete? While there have been important changes in penal policy over the past generation, there is also a great deal about the death penalty debate that hasn’t changed. The first thing that well-informed readers will notice when they compare Professor Sellin’s list of topics with the angry rhetoric of 2012 is that, for the most part, the same issues are in dispute and the same arguments are made on both sides. What do the most wicked of criminals deserve or require? Is the added possibility of death a life-saving deterrent? Might murderers kill again if they are not executed? These bones of contention are what gar¬ deners like to call the hearty perennials of the death penalty debate, no different in 1980 than in 2012. But if the issues and arguments don’t change much, what about the social science methods used to investigate deterrence and what about the weight of the evidence on questions like the marginal deterrent effect of the availability of the death penalty? Here again, one finds more continuity than change. In the 1970s, economists like Isaac Erlich (1975) criticized the simplicity of Sellin’s earlier comparisons and argued that complex regression analysis of the American data provided evidence of marginal deterrent effect. As Chapter 10 of this volume shows, the

X

THE PENALTY OF DEATH

complex new statistical arguments did not provide any compel¬ ling evidence of death penalty deterrence for reasons outlined by a national academy of science panel in 1978 (Blumstein, Cohen, & Nagin, 1978), and what has happened since 1980 is best described as social science deja vu. A new group of com¬ plex statistical analyses by economists claimed evidence of mar¬ ginal deterrent effects in the recent experience in the United States, and a new National Academy of Sciences panel found the evidence unpersuasive (Nagin & Pepper, 2012). But one other element in the long history of the death pen¬ alty as public policy is even more important than the continu¬ ing tug-of-war about deterrence, and that is the irrelevance of evidence about deterrence to the ultimate decision that nations make about the death penalty. In 1951, despite his own dedica¬ tion to the statistical study of deterrence, Sellin told the British Royal Commission, “When a people no longer likes [italics his] the death penalty for murders it will be removed no matter what happens to homicide rates” (Sellin, 1951, p. 656). That capital punishment remains an issue ultimately of moral and political sentiment is as true in 2012 as ever.

III. FOUR CHANGES So the issues and arguments about capital punishment have remained surprisingly constant over the years since 1980 and for most of the last century. What has changed rather dramatically is death penalty policy, in both the United States and the rest of the world. *

The American Pattern When Thorsten Sellin completed The Penalty of Death in 1979, the United States had experienced a total of three execu¬ tions since 1977, when executions resumed; by 2012, the number of executions since 1977 had grown to over 1,300. Figure 1 shows the pattern of executions by year and the annual volume of new death sentences issued in the United States from 1980 to 2010.

xi

Foreword

Figure 1 Executions and Death Sentences by Year in the United States, 1980-2010

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Executions

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-- Death Sentences

SOURCE: U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment 2010

(2011).

The growth in executions by year was swift, reaching a peak of 98 in 1999 and then falling by more than half over the next 11 years. New death sentences have been falling even faster, by two-thirds from the peak rate of 315 in 1996. More than 80% of the executions in the period happened in the south, with special concentrations in Texas, Oklahoma, and Virginia (Zimring, 2003). Not only has the pace of executions and death sentences fallen back somewhat, but five states have abolished the death penalty. I suspect that Professor Sellin (who died at age 97 in

Xll

THE PENALTY OF DEATH

1994) would have been surprised by the high level of execu¬ tions in the United States during the late 1990s but not by the concentration of state killings in the south or by the movement away from the death penalty in the most recent decade. The second huge change in death penalty policy is the accel¬ erating trend toward abolition of the death penalty all over the world. When this book first appeared, the two centuries since Beccaria began a campaign against death as criminal punish¬ ment produced 37 nations that had abolished the death penalty, and only Western Europe had become an execution-free zone. What happened over the next generation was that the number of nations abolishing capital punishment almost tripled. Figure 2 tells the story using Amnesty International data. The best measure of abolition is the combination of the all crime and ordinary crimes categories, and the number of aboli¬ tionist nations by that measure grows from 37 to 104. The number of all crimes abolitions increases fivefold over the 30-year period. There were two important changes in the way issues were framed and discussed in the period after 1980. The first sub¬ stantive change was serious concern about the risk of executing the innocent. There had always been controversy about the extent to which executions risked the irreversible extinction of an innocent condemned, but the creation and use of biological evidence in sex killings and other cases where biological resi¬ due from an offender is present created an incontrovertible sci¬ entific test in some cases. These careful and conclusive tests showed in many cases that the wrong person had been arrested and convicted, puncturing what had been “the myth of infalli¬ bility” surrounding death sentence convictions (Zimring, 2003). This scientific proof of erroneous capital convictions has undermined the public and political support for capital punishment in the United States, particularly in northern indus¬ trial states. The second major change in view about the death penalty is of greatest importance outside the United States. After the last of the Western European nations abolished capital punishment

Figure 2 The Prevalence of Death Penalty Abolition, 1980-2010

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