Setting the Record Straight

Study Cited by Death Penalty Proponents Found Lacking

By Rob Schofield

On Tuesday of this week, the House and Senate Minority leaders, Rep. Paul Stam of Wake County and Sen. Phil Berger of Rockingham County held a joint press conference at the General Assembly to announce the introduction of legislation aimed at jumpstarting executions in North Carolina. Though North Carolina’s criminal justice system continues to try people for murder and sentence some of those convicted to death, executions are currently on hold as the result of the decision of the state Medical Board to bar the active participation of licensed physicians in death chamber activities and the conflict with the state’s execution “protocol” that this decision spawned.

According to Stam and Berger, North Carolina legislators should affirmatively overrule the Medical Board (as well as, prospectively, the state Boards of Nursing and Pharmacy) and relieve them of their longstanding authority to determine the appropriate role of physicians, nurses and pharmacists in ending human life – at least in this one area.

In defending the need for the proposed legislation, Rep. Stam argued that the death penalty is a deterrent to “some murders.” He also distributed a two-page statement in which he said North Carolina was under a de facto moratorium that would lead to more murders. According to the statement, a study by a pair of business school professors at the University of Houston – Clear Lake “found a 21-month court-imposed moratorium in Texas probably caused 90 additional homicides.” The statement continued:

 

“Whether North Carolina would experience a similar “surge” in homicide (sic) during the two-year period of a moratorium in unknowable but likely. If so this would mean the ‘cost’ of a moratorium in North Carolina would include around 25 additional innocent victims of homicide per year.”

Rep. Stam’s claims were, in turn, (and unfortunately) reported in the Raleigh News & Observer without any contrary opinions or statements on the issue of deterrence.

Setting the Record Straight

The question of whether the death penalty deters murder has, of course, been a topic of heated debate for decades, if not centuries. Once widely used by death penalty proponents as one of their chief rationales for supporting executions, the deterrence argument has faltered in recent years as the volume of studies refuting its value has multiplied. A close look at the facts shows that Rep. Stam’s efforts to revive the argument do little to help.

Fact #1 – Rep. Stam’s description of the Texas situation appears to be inaccurate. There was no 21-month moratorium, just a 12 month slowdown. According to the Houston – Clear Lake professors themselves,

“On January 2, 1996 the Texas Court of Criminal Appeals granted a stay of execution in Davis, ex parte (947 S.W.2d 216; 1996). The effect of this order was the delay of all but three executions in Texas during 1996. In the prior three years Texas executed an average of 17 death row inmates per year. The appeals court lifted its stay on December 18, 1996 and executions resumed on February 10, 1997. Practicing catch-up, Texas executed 37 inmates in the remaining months of 1997.” 

Fact #2 – The Houston – Clear Lake report has since been demonstrated to have been of no real value in assessing the overall deterrent effect of the death penalty. As is explained in a 2005 article by Professor Richard Berk of the Statistics Department at UCLA, the Houston – Clear Lake study relied upon far too small of a universe of data to be of any real value. Berk puts it this way:

“A number of papers have recently appeared claiming to show that in the United States executions deter serious crime. There are many statistical problems with the data analyses reported. This paper addresses the problem of “influence,” which occurs when a very small and atypical fraction of the data dominate the statistical results. The number of executions by state and year is the key explanatory variable, and most states in most years execute no one. A very few states in particular years execute more than 5 individuals. Such values represent about 1% of the available observations. Re-analyses of the existing data are presented showing that claims of deterrence are a statistical artifact of this anomalous 1%.”

In other words, you can’t just look at one year in one state and divine that the death penalty is a deterrent to homicide. To do so is to make a mountainous and expansive extrapolation from a tiny molehill of unusual evidence. Berk confirmed this when he looked at the other 99% of data excluded by the Houston – Clear Lake report. Indeed, some have argued that it is possible to come to an opposite conclusion from the Texas data; that is, that a spike in executions can give rise to an increase in homicides the year afterwards as word of the increasing cycle of violence spreads throughout a community. This has been referred to as the “brutalization” effect.    

Fact #3 – When one looks at the broader body of evidence from the nation and the world as a whole over many years, the deterrence argument is further undermined. For instance, in the United States, the south continues to have the highest murder rate at the same time that it executes far and away the most people. Many of the states with the lowest murder rates are the states that don’t permit the death penalty. Similar inferences can be drawn when the U.S. as a whole is compared to many European countries.

And so…

In light of this reality, Rep. Stam’s assertion that North Carolina is “likely” to experience a surge in homicides at a rate of 25 per year amounts to a wild extrapolation based upon a wild extrapolation and an unfortunate attempt to grasp some hard numbers where none are available. Indeed, based upon experience in several states besides Texas, (e.g. Hawaii, Iowa, Maine, Massachusetts, Michigan, and others) it seems at least equally likely that a moratorium in North Carolina might, over time, generate a reduction in murders as the cycle of violence is ratcheted down.     

Given the, at best, uncertain character of the data surrounding the issue of deterrence and the death penalty, North Carolina public officials would probably do well to confine their discussion regarding the troubled state of lethal injection and the option of a proposed statutory moratorium to the immediate circumstances (i.e., whether is possible to fashion a capital punishment law that is truly fair, foolproof, and constitutional). Notwithstanding the assertions of Senator Berger and Representative Stam, that’s an issue on which the jury is still out.  

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This entry was posted on Thursday, March 15th, 2007 at 4:51 pm and is filed under Setting the Record Straight. You can follow any responses to this entry through the RSS 2.0 feed.