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The Death Penalty: Deterrence and Question of Racial Equality

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

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The Death Penalty: Deterrence and Question of Racial Equality

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

  2. 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

  3. 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

  4. 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

  5. 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

  6. What does all this mean?

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

  8. 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

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

  10. 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

  11. 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

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

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

  14. 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

  15. What did he find?? • 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

  16. Problems with mid-level cases

  17. Problems with mid level cases

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

  19. 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

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

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