Thursday, August 20, 2015

If the Death Penalty does not Deter, it must be Abolished

Newsweek
OPINION
Does the Death Penalty Deter Killers?
BY JOHN DONOHUE 8/19/15 AT 12:43 PM

This article first appeared on The Conversation.

Capital punishment is such a costly, controversial and divisive issue that, unless it succeeds in saving lives, it clearly should be abolished–as it already has been in the European Union and 101 countries around the world.

But does the death penalty save lives? Let’s consider the relevant factors and the evidence.

Some feel the question of whether the death penalty deters can be argued as a matter of theory: Capital punishment is worse than other penalties, therefore it must lead to fewer killings. This contention misses much of the complexity of the modern death penalty.

First, theory can’t tell us whether the spectacle of state-sanctioned killings operates to unhinge marginal minds into thinking that their own grievances merit similar forms of retribution that they then try to inflict on their own. Even if some other criminals were deterred by the death penalty, one must ask whether these avoided crimes would be more than offset by the possible brutalization effect.

Second, operating a death penalty regime—at least in the United States—has been incredibly costly, as each case resulting in a death sentence will spend years in various types of legal appeals, eating up the valuable time of judges, prosecutors and defense lawyers, overwhelmingly at government expense.

The best research on the issue suggests that life imprisonment is a less costly penalty, since locking someone up is far less expensive than both locking them up and paying a team of lawyers for many years—often decades—to debate whether a sentence of death should be imposed. In California, for example,execution is only the third leading cause of death for those on death row (behind old age and suicide).

Some might contend that the lengthy appeals are a needless burden that should be jettisoned so that the penalty is administered more cheaply and quickly, but the large number of exonerations of those on death row (155, including 21 by DNA evidence, at last count) underscores the danger of any effort to short circuit the judicial process.

Killing a few innocent defendants is an unavoidable consequence of having a capital regime—so unless there is some clear evidence of deterrence, it is hard to argue positively for the death penalty.

Lack of Evidence

So what is the evidence on deterrence? Here the answer is clear: There is not the slightest credible statistical evidence that capital punishment reduces the rate of homicide.

Whether one compares the similar movements of homicide in Canada and the U.S., when only the latter restored the death penalty, or in American states that have abolished it versus those that retain it, or in Hong Kong and Singapore (the first abolishing the death penalty in the mid-1990s, and the second greatly increasing its usage at the same), there is no detectable effect of capital punishment on crime. The best econometric studies reach the same conclusion.

A number of studies—all of which, unfortunately, are only available via subscription—purported to find deterrent effects, but all of these studies collapse after errors in coding, measuring statistical significance, or in establishing causal relationships are corrected. A panel of the National Academy of Sciences addressed the deterrence question directly in 2012 and unanimously concluded that there was no credible evidence that the death penalty deters homicides.

The report went on to say that the issue of deterrence should be removed from any discussion of the death penalty given this lack of credible evidence. But if the deterrence argument disappears, so does the case for the death penalty.

Those familiar with criminal justice issues are not surprised by the lack of deterrence. To get the death penalty in the United States one has to commit an extraordinarily heinous crime, as evidenced by the fact that last year roughly 14,000 murders were committed but only 35 executions took place.

Since murderers typically expose themselves to far greater immediate risks, the likelihood is incredibly remote that some small chance of execution many years after committing a crime will influence the behavior of a sociopathic deviant who would otherwise be willing to kill if his only penalty were life imprisonment.

Any criminal who actually thought he would be caught would find the prospect of life without parole to be a monumental penalty. A criminal who didn’t think he would be caught would be untroubled by any sanction.

Wasted Resources

A better way to address the problem of homicide is to take the resources that would otherwise be wasted in operating a death penalty regime and use them on strategies that are known to reduce crime, such as hiring and properly training police officers and solving crimes.

Over the past three decades, there has been a downward trend in the number of murders that lead to arrest and conviction to the point that only about half of all murders are now punished. The graphic below shows the steady decline in the number of homicides cleared by arrest in Connecticut, which mimics the national trend. Of course, even if there is an arrest, there may not be a conviction, so the percentage of killers who are punished is smaller than this figure suggests.

Murder cases cleared by arrest or other means: 1970 - 2009 JOHN DONOHOE
http://s.newsweek.com/sites/www.newsweek.com/files/styles/embedded_full/public/2015/08/19/0819murdercases01.png

Far better for both justice and deterrence is if the resources saved by scrapping the death penalty could be used to increase the chance that killers would be caught and punished—and taken off the streets.

To give a sense of the burden of capital punishment, note that over the past 35 years the state of California spent roughly $4 billion to execute 13 individuals. The $4 billion would have been enough to hire roughly 80,000 police officers who, if appropriately assigned, would be expected to prevent 466 murders (and much other crime) in California—far more than any of the most optimistic (albeit discredited) views of the possible benefits of capital punishment.

In other words, since the death penalty is a costly and inefficient system, its use will waste resources that could be expended on crime-fighting measures that are known to be effective. It is not surprising that last summer a federal judge ruled that California’s capital regime is unconstitutional on the grounds that it serves no legitimate penological interest.

The sharp decline in executions in the U.S. from the peak of 98 in 1999 down to 35 last year (with death sentences falling from a 1996 peak of 315 to 73), coupled with the steady pace of states abolishing the death penalty over the past eight years (including conservative Nebraska in May), shows that “smart on crime” entails shunning capital punishment.

With zero evidence that the death penalty provides any tangible benefits and very clear indications of its monetary, human and social costs, this is one program about which there can be little debate that its costs undeniably outweigh any possible benefits.

John Donohue is C. Wendell and Edith M. Carlsmith professor of law atStanford University.

Saturday, February 07, 2015

Broken Windows Theory

[Policing]  Broken Windows Theory
ED JAMES II

In 1982, the late scholar James Q. Wilson published "The Broken Windows Theory," that he conceived as a new way to controlling crime. Wilson believed  that order in a neighborhood could be maintained by the prosecution of minor violations which would curtail more severe crime later. This broken windows policing, critics say, leads to police violence against black and brown men. Because of the deaths of an unarmed 18-year-old black male gunned down in Ferguson, Mo., an unarmed black man that died in a police chokehold in Staten Island, N.Y. when he resisted arrest, and a 12-year-old black boy armed with a toy gun who was arbitrarily shot to death by the police  in Cleveland, Ohio, many Americans have finally become aware that they live in a violent culture, at least in the treatment of black and brown men by the police.
What is the cause of this rampant police brutality against men of color? Incidents so uncivilized that the criticism seems justified when one considers that trivial violations led to the violence. Michael Brown was shot to death in Ferguson, Mo. for ignoring a police officer’s command to stop walking in the middle of the street. Eric Gardner died on a Staten Island, N.Y. street protesting his arrest by the police for selling cigarettes without a permit - a misdemeanor.  However, the problem of police violence against black men will not be resolved simply by ignoring the enforcement of petty offenses. There is no acceptable justification for this violent police conduct, although many would like to believe just the opposite, finding mitigating flaws in police rules and procedures. A common target of criticism is the so-called “broken windows” policing policies.
The  futility of that approach, not too long ago, was demonstrated by New York police after a mentally ill man shot and killed two of their fellow officers. During the funeral services for the slain officers, some policemen disrespected the Mayor by turning their backs during his remarks. The officers felt the mayor had shown too much sympathy to protesters of police violence. Mayor Bill de Blasio, the father of a bi-racial son and daughter, once said he, like many other parents of black and brown children, was concerned for the safety of his son should he be confronted by the police.
According to the New York Times, there has been a precipitous decline in the issuance of summonses by the police for public drinking, public urination and parking violations, as well as drug arrests. Nonetheless, there has been no demonstration of a reduction in the conflict between the police and black men.
Residents of urban neighborhoods will not likely feel closer to the police when their quality of life deteriorates because of police recalcitrance. The broken windows strategy works better when there already is a good relationship between the police and the community.
The police are public servants. Citizens with wealth and status in society will not tolerate abusive police behavior. The police understand that, so their conduct is respectful and professional. A major deviation from that standard will result in their dismissal.
The real objective of police reform is to establish that same standard of police conduct in low-income neighborhoods. Community policing is designed to establish an almost collegial relationship between the citizens and the police. The addition of body cameras has been shown to reduce excessive police force.
Americans must now be willing to adopt imaginative programs to end the police victimization of black and brown men.  
Ed James II is the host of Black Almanac

Friday, November 28, 2014

A Judge can have the power to save a kid

I read with interest the guest column by Adam Tebrugge of Nov. 25. I thought the timing could not have been better than to print the article the day after the passing of Judge Lynn Silvertooth.
Speaking from personal experience, I know Judge Silvertooth was a compassionate person who saw no need to ruin the life of a young man because of indiscretions and bad decisions.
The judge saw the wisdom in alternatives to incarceration. Were he on the bench today, he would have embraced the Teen Court, Drug Court, Veterans Court, and the Selah Freedom organization for the ways they have worked to reinstate judicial discretion and move away from mandatory minimums that the Florida statutes have imposed upon our courts.
Mandatory minimums have done more harm than good. Taking discretion away from the courts has caused many young people to be cast aside, denied opportunities, even cheated out of the opportunity to serve in our military. The military gave so many of us the opportunity and time necessary for us to grow up, earn the GI Bill, get an education and become responsible citizens -- the time to learn to manage our money, learn discipline, learn a skill, and serve our country.
Mandatory minimums have left our law enforcement agencies trying to find a diverse work force to serve minority or ethnic neighborhoods, because of felony convictions imposed. In the past Judge Silvertooth and other judges like him would have found a way to "save the kid," instead of "sentence the kid."

It is a shame we will never have more judges with the opportunities that Judge Silvertooth had to save kids. Others like Katie Self, Judge Lee Haworth and Carolyn Mason keep trying, but until our Legislature has the courage to ignore the potential fears of the "soft on crime" mailers that others may use against them, we will continue arresting and sentencing young men and women for smoking a bit of marijuana, or just raising hell like I did.
Judge Silvertooth will be missed by all for his compassion and true understanding of justice. I will always remember the man who called me into his office and gave me a chance instead of being the judge who would have had his hands tied by a system that is destined to ruin so many lives.
Your headline was correct: "Judge's reputation was legendary."

Michael S. Bennett, a former state senator, is the supervisor of elections for Manatee County.

Wednesday, November 26, 2014

Improve justice by providing alternatives to incarceration

     I have been part of the local criminal justice system for 30 years. During that time, I have seen thousands of young men and women sentenced to lengthy jail and prison sentences. Among the reasons for mass incarceration are lengthy "minimum mandatory" sentences that result in addicts being locked up until they are elderly.
Crime rates are significantly down in our area, our state and our nation. Yet the United States continues to have the highest incarceration rates in the world.
The prisons in Florida provide little in the way of education opportunities, addiction treatments or mental health counseling. Inmates are released back into our communities with few prospects for jobs or reintegration.
I had the opportunity to discuss these topics with about 100 engaged citizens who participated in a recent "Einstein's Circle" held at the University of South Florida. As one of the programs produced by the Lifelong Learning Academy, this is an opportunity to interact, engage and discuss important topics with people who can add their own insights and experiences to the mix.
When I use the term "criminal justice reform," I am primarily referring to the elimination of minimum mandatory sentences in order to return discretion to the local judiciary, where it belongs. But I am also talking about ending our overreliance on prison sentences when nothing is done to address underlying issues.
My argument is that we need to expand alternatives to incarceration, like Drug Court and Veterans Court, while making victim compensation a primary goal of the system. It also means working to reintegrate offenders into our communities and not denying them the right to vote after the completion of a court's sentence.

The citizens involved with Einstein's Circle had a lot to add to this discussion. Among the questions asked and points raised were the following:
Does the privatization of the prison system incentivize incarceration over better rehabilitation strategies? Would additional community mental health treatment centers be a good investment?
Why is there resistance to paying for long-term drug treatment as an alternative to imprisonment? Shouldn't we provide extra educational incentives to prisoners in Florida's jails and prisons?
Aren't our limited financial resources better spent on treatment, education and victim compensation? With crime rates down, can we reduce the amount of money spent on law enforcement and corrections? How can we work with employers to give offenders a second chance at meaningful work so that they can make restitution to victims?
Many people in the audience had experience working with offenders. There was general consensus that we need to work with inmates to tackle issues such as illiteracy while they are incarcerated. We can't keep people locked up for years at a time and then release them with out the necessary skills to survive.
We must also strive to understand the disproportionate impact that our present criminal justice policies have had upon African-American citizens and neighborhoods, and adopt educational and community strategies other than incarceration.

At the national level, some progress has been made in reducing prison sentences for certain drug offenses. States such as Georgia, Texas, California and New York have implemented reform efforts that have resulted in significant cost savings and no increase in criminal behavior.
One interesting aspect of these reform efforts is that they are usually bipartisan. Saving scant resources, eliminating wasteful incarceration costs, and providing for more effective treatment of offenders are neither Democratic nor Republican policies. They just make sense.
In Florida, despite our declining crime rates, the prison population continues to increase. We will spend approximately $2.4 billion this year just on housing prisoners. Our state's incarceration rate is 26 percent higher than the national average, and we have the third-largest correctional system in the nation. Approximately 102,000 people are locked up in Florida prisons and many more are housed in our county jails.
Unfortunately, legislators are reluctant to tackle meaningful reform efforts for fear of being portrayed as "soft on crime." As citizens, it is our job to let our elected leaders know that we want them to examine different priorities for our criminal justice system.
For further information on this subject, I recommend that you review websites maintained by the Sentencing Project, the Marshall Project, "Right on Crime -- The Conservative Case for Reform," and others.
Locally I maintain a Facebook page called "Sarasota Criminal Justice Reform," where I collect articles and moderate discussions on this topic. I encourage you to join the conversation.

Adam Tebrugge of Sarasota is a Bradenton-based defense attorney.

Monday, November 24, 2014

Obituary for Judge Lynn Silvertooth

(Here is the Sarasota Herald Tribune article about naming the courthouse after Judge Silvertooth)


Judge Lynn N. Silvertooth, 91, of Sarasota, FL passed away peacefully at his home on November, 23, 2014.  He was born October 26, 1923 in Fayetteville, Tennessee and moved to Sarasota when he was approximately three months old.

He attended Sarasota High School and graduated from Manatee High School where he played on the football team but more importantly, met his future wife, Betty Wilson. He joined the Marines where he served our country with valor in South Pacific.  He was on the island of Guam when the end of the war was declared.  After returning from World War II, Lynn married Betty in 1946, enrolled in the University of Florida and after graduating, entered the University of Florida Law School where he graduated in 1949.

Lynn returned to Sarasota after law school where he started work for attorney Clyde H. Wilson.  Two years later, the Governor appointed him to be an assistant state attorney, covering the area from Manatee County down to Collier County.  After going into private practice for approximately four years, Florida Governor Ferris Bryant appointed Lynn to the 12th Judicial Circuit Court in 1964.  During his time on the bench, Judge Silvertooth served as Chief Judge of the Circuit and handled many high profile cases both here and in other areas of the state.  He was also instrumental in allowing cameras in the courtrooms for the first time.  He retired in 1988 though he continued working as a senior judge. 

In 2006, the Sarasota County Judicial Center was renamed the Judge Lynn N. Silvertooth Judicial Center in his honor.  As then-Chief Judge Robert Bennett remarked, "For generations of lawyers, he epitomized what a judge and court system ought to be about.  He stands as a mold not only for me but for other judges, and hopefully judges to come." He truly led a hero's life.  

In his private life, Lynn was an avid fisherman.  He knew all the best fishing spots in this area and often went to the Florida Keys to fish with his friends.  

Lynn is survived by his beautiful wife, Betty, his beloved cat Garfield, his son Jim and Jim's wife Lisa and their two beautiful daughters, Shelby and Nikki, his son-in-law Gordon and grandsons Robert and James.  Lynn was predeceased by his wonderful and beautiful daughter, Sandy, in 2013.

A service celebrating Lynn's life will be held on Monday, December 1 at 11a.m. at the First Presbyterian Church of Sarasota, 2050 Oak Street, Sarasota, FL 34237.  A reception following the service will be held in an adjoining room.

The family requests that in lieu of flowers, donations be made to Hospice of Sarasota.

Wednesday, December 11, 2013

Treating Juveniles Like Juveniles: Getting Rid of Transfer and Expanded Adult Court Jurisdiction

The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law nor developmental science justifies the conclusion that juvenile offenders deserve significant mitigation in the non-capital context. If instead juvenile justice is reconceptualized as a preventive mechanism rather than a punishment regime (as laid out in the book I co-authored, "Juveniles at Risk: A Plea for Preventive Justice"), transfer becomes much less alluring. If the primary goal of juvenile justice is public safety, with retribution conceived as an important goal only to the extent that recognizing it is necessary to ensure systemic legitimacy, then maintaining an adult court option for juveniles (and imposing long sentences on them) becomes unnecessary and counterproductive. Appended to this article is another article, written for the ABA’s Criminal Justice Magazine, that fleshes out how a risk management regime would work in a prevention-oriented juvenile justice system.



Christopher Slobogin 


Vanderbilt University - Law School

November 6, 2013

Texas Tech Law Review, Vol. 46, 2013
Vanderbilt Public Law Research Paper No. 13-37