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
- Sentenced to death
-
Aggravating Circumstances:
- Committed in the course of a felony
- Committed for the purpose of receiving money
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
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
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
What does all this mean?
Erlich and his critics…
1.
Period Effects
2.
Nationally Aggregated Data
3.
LWOP Effect?
4.
Reliability of Information
5.
Retest Troubles
Later attempts at perfection
Other ways to conduct the study:
Matching
1.
-
Similar to Sellin study, using similar states
Local Deterrence / Temporary Effects
2.
-
Some studies have shown that there is a deterrent effect
close to execution site, for short times
Interested in reading more???

Prof. Fagan's Testimony

Law and Econ View ???

More Studies...and Death Penalty Reading
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
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
McClesky: The court’s holding

Court of Appeals and SCOTUS accepted the study
as true

However, no discriminatory intent

Concern over slippery slope
Proportionality Review

Problems:
1.
2.
3.

Universe Problems
Subjectivity
Replication
Solutions:
1.
2.
Scale / Index Construction
Objective criteria / Guidelines for judges
Dr. Baldus: His work and findings
-
Commissioned by the LDF
-
Two Parts:
1.
2.
-
Universe:
-
-
Procedure
Charging and Sentencing
2,485 Post-Furman
Cases in Georgia
Most comprehensive study
to date
What did he find??

Race of victim equal to:
1.
2.
3.

22%
8%
Prosecutorial Discretion



Multiple stabbings
Serious (felony) prior
record
Armed robbery involved
Black D /
White D /
White Victim White Victim
More likely to seek death
penalty
Less likely to grant plea
bargain
4% Black D’s / 7% White D’s
Black D /
White D/
Black Victim Black Victim
1%
3%
Problems with mid-level cases
Problems with mid level cases
Georgia Charging and Sentencing Study Graph
16
14
12
10
8
6
4
2
0
-2
-1
0
1
2
-2
-4
Sentencing for White Victims
Sentencing for Black Victims
3
4
How bad is this study?
1.
Data in parole files was incomplete
2.
Differences in Coding
3.
Rebuttable Presumption
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
Going Forward

Justice Powell
“my understanding of statistical analysis ranges from limited
to zero”

Daubert standards

Judicial Education ?