THE DEBATE: CAPITAL PUNISHMENT
SHOULD BE MAINTAINED

FROM TESTIMONY OF ANN SCOTT, TULSA, OKLAHOMA, BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES,'' FEBRUARY 1, 2006

Our daughter, Elaine Marie Scott, age 21, a fourth-year junior studying elementary education at the University of Oklahoma, was brutally beaten, tortured, sexually assaulted, and beaten to death by Alfred Brian Mitchell at the Pilot Recreation Center in Oklahoma City on January 7, 1991. Mitchell had just been released on his 18th birthday from Lloyd Rader Juvenile Detention Center in Sand Springs, Oklahoma. . . .

He had been locked up there for 3 years for raping a little 12-year-old girl that he dragged off from her bus stop early one morning. The Department of Human Services, DHS, could have kept him for another year, but chose not to because they couldn't help him. They needed his bed for someone that they thought that they could help, and so he came home.

Seventeen days after his release from Lloyd Rader, he beat, tortured, sexually assaulted, and beat our beautiful daughter to death using his fists and a golf club until it broke. He stabbed her in the neck five times with a compass that you would use to make circles with. And finally, he used a wooden coat tree that crushed her skull and sent shards of wood completely through her brain. She never had a chance. . . .

In June 1992, the trial finally started after preliminary hearings, many delays because of a lack of funds for expert defense witnesses, and several different dates for motion hearings. Again, and all through the trial, Mitchell smiled and laughed at the news reporters. Even when he was on the witness stand, he never admitted that he and he alone had murdered Elaine. It took the jury oneand-a-half hours to find him guilty of murder, and 2 hours to give him the death penalty.

In 1999, there was an evidentiary hearing at the Federal court, where it was determined that the forensic chemist from the Oklahoma City Police Department had lied on the witness stand. Even though Judge Thompson from the Federal court threw out the rape charges, he upheld the death penalty because the murder itself was so heinous, atrocious, and cruel.

In July of 2000, at the Tenth Circuit Court, the judges overturned the sentence because it was felt by them that the jury might have given Mitchell a lesser punishment if the rape charge had never been presented, and so back to court we went in October of 2002 to redo the sentencing phase of the trial. After 2 weeks of listening to evidence, the case was given to the jury. It took them 5 hours, but they came back with a unanimous verdict and once again gave Mitchell the death penalty. Mitchell, true to form, stood at the elevator waiting to be taken back to prison, turned and gave our oldest son an ear-to-ear grin. He then got on the elevator and was once again taken away.

On October 11, 2005, we finally started the appeals process again with the State Court of Criminal Appeals. We have not as of this date had a decision from them, nor do we know when we will. But we will be ready to continue on and see this through to the end when it comes. . . .

Through all of this, Mitchell has never shown any remorse for his actions. If you ask if we seek retribution, yes, we do. Alfred Brian Mitchell was found guilty by two different juries of his peers. He was given the death penalty because of his crime and because it was felt that he would commit more crimes if he were ever, under any circumstances, released. I, me, I want this bully gone. I want him to disappear off the face of this earth. I want him to rot in hell for all of eternity. He is a bad seed that never should have been born. He is an animal, and when you have animals that attack people, you take them to the pound and you have them put away. What this animal has taken from us can never be returned. It has taken a lot of the love and the laughter from our home.

I have had my husband break down and sob in my arms, and I have watched his health, both mental and physical, deteriorate over the years. I have seen Elaine's two brothers struggle with life. David, the oldest, has gone through panic attacks and at times thought that he should be dead because he has outlived his sister and that is not the way it should be. I have watched Elaine's little brother clam up. To this day, Robert still cannot talk about his most favorite person in the whole wide world. His big sister is gone, taken violently from him, and he still can't deal with it. The rest of us, my husband and I, have closed ranks with our children. Even though they have grown and David is married now, we still have become more protective and we are frightened every time that they are out of sight or we don't hear from them.

Will we ever get over the murder of our daughter? Will there ever be any closure for us? I don't think so. Even after Mitchell has been executed, we will still be left with all of our wonderful memories of Elaine and all of the horror that was done to her. But perhaps once he is gone, we will be able to spend more time on the happy memories and less on thinking how her life ended. We will be at Alfred Brian Mitchell's execution. We will not rejoice, because it won't bring Elaine back. But we don't expect that it will. However, the process will finally be over and we will no longer have to spend any time or effort on pursuing justice for our daughter. Perhaps we will finally hear the remorse that so far has not been expressed. But for certain, what it will do is to ensure that he will never be able to hurt anyone ever again, and I hope and pray that you will never have to walk in our shoes.

FROM TESTIMONY OF JOHN MCADAMS, PROFESSOR OF POLITICAL SCIENCE, MARQUETTE UNIVERSITY, MILWAUKEE, WISCONSIN, BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES,'' FEBRUARY 1, 2006

One of the most compelling arguments against the death penalty, at least if one accepts the claims of the death penalty opponents at face value, is the claim that a great many innocent people have been convicted of murder and put on death row. Liberal Supreme Court Justice John Paul Stevens, just to pick one case out of hundreds, told the American Bar Association's Thurgood Marshall Award dinner that ''That evidence is profoundly significant, not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice.''

The most widely publicized list of ''innocents'' is that of the Death Penalty Information Center (DPIC). As of January, 2003, it listed 122 people. That sounds like an appallingly large number, but even a casual examination of the list shows that many of the people on it got off for reasons entirely unrelated to being innocent. Back in 2001, I analyzed the list when it had ninety-five people on it. By the admission of the Death Penalty Information Center, thirty-five inmates on their list got off on procedural grounds. Another fourteen got off because a higher court believed the evidence against them was insufficient. If the higher court was right, this would be an excellent reason to release them, but it's far from proof of innocence.

Interestingly, prosecutors retried thirty-two of the inmates designated as ''innocent.'' Apparently prosecutors believed these thirty-two were guilty. But many whom prosecutors felt to be guilty were not tried again for a variety of reasons, including the fact that key evidence had been suppressed, witnesses had died, a plea bargain was thought to be a better use of scarce resources, or the person in question had been convicted and imprisoned under another charge.

More detailed assessments of the ''Innocents List'' have shown that it radically overstates the number of innocent people who have been on death row. For example, the state of Florida had put on death row 24 inmates claimed, as of August 5, 2002, to be innocent by the DPIC. The resulting publicity led to a thorough examination of the twenty-four cases by the Florida Commission on Capital Crimes, which concluded that in only four of the twenty-four cases was the factual guilt of these inmates in doubt.

Examinations of the entire list have been no more favorable. For example, a liberal federal district judge in New York ruled, in United States v. Quinones, that the federal death penalty is unconstitutional. In this case, the court admitted that the DPIC list ''may be over-inclusive'' and, following its own analysis, asserted that for thirty-two of the people on the list there was evidence of ''factual innocence.'' This hardly represents a ringing endorsement of the work of the Death Penalty Information Center. In academia, being right about a third of the time will seldom result in a passing grade.

Other assessments have been equally negative. Ward A. Campbell, Supervising Deputy Attorney General of the State of California, reviewed the list in detail, and concluded that: ''. . . it is arguable that at least 68 of the 102 defendants on the List should not be on the list at all—leaving only 34 released defendants with claims of actual innocence—less than 1/2 of 1% of the 6,930 defendants sentenced to death between 1973 and 2000. . . .''

At this point, death penalty opponents will argue that it doesn't matter if their numbers are inflated. Even if only 20 or 30 innocent people have been put on death row, they will say, that is ''too many'' and calls for the abolition of the death penalty. If even one innocent person is executed, they claim, that would make the death penalty morally unacceptable.

This kind of rhetoric allows the speaker to feel very self-righteous, but it's not the sort of thinking that underlies sound policy analysis. Most policies have some negative consequences, and indeed often these involve the death of innocent people—something that can't be shown to have happened with the death penalty in the modern era. Just wars kill a certain number of innocent noncombatants. When the FDA approves a new drug, some people will quite likely be killed by arcane and infrequent reactions. Indeed, the FDA kills people with its laggard drug approval process. The magnitude of these consequences matters.

Death penalty opponents usually implicitly assume (but don't say so, since it would be patently absurd) that we have a choice between a flawed death penalty and a perfect system of punishment where other sanctions are concerned.

Death penalty opponents might be asked why it's acceptable to imprison people, when innocent people most certainly have been imprisoned. They will often respond that wrongfully imprisoned people can be released, but wrongfully executed people cannot be brought back to life. Unfortunately, wrongfully imprisoned people cannot be given back the years of their life that were taken from them, even though they may walk out of prison.

Perhaps more importantly, its cold comfort to say that wrongfully imprisoned people can be released, when there isn't much likelihood that that will happen. Wrongful imprisonment receives vastly less attention than wrongful death sentences, but Barry Scheck's book Actual Innocence lists 10 supposedly innocent defendants, of whom only 3 were sent to death row.

Currently, the Innocence Project website lists 174 persons who have been exonerated on the basis of hard DNA evidence. But the vast majority was not sentenced to death. In fact, only 15 death row inmates have been exonerated due to DNA evidence.

There is every reason to believe that the rate of error is much lower for the death penalty than for imprisonment. There is much more extensive review by higher courts, much more intensive media scrutiny, cadres of activists trying to prove innocence, and better quality counsel at the appeals level (and increasingly at the trial level) if a case might result in execution. . . .

Death penalty opponents tend to inhabit sectors of society where claiming ''racial disparity'' is an effective tactic for getting what you want. In academia, the media, the ranks of activist organizations, etc. claiming ''racial disparity'' is an excellent strategy for getting anybody who has qualms about what you are proposing to shut up, cave in, and get out of the way.

Unfortunately, this has created a hot-house culture where arguments thrive that carry little weight elsewhere in society, and carry little weight for good reasons.

Consider the notion that, because there is racial disparity in the administration of the death penalty, it must be abolished. Applying this principle in a consistent way would be unthinkable. Suppose we find that black robbers are treated more harshly than white robbers?

Does it follow that we want to stop punishing robbers? Or does it follow that we want to properly punish white robbers also? Nobody would argue that racial inequity in punishing robbers means we have to stop punishing robbers. Nobody would claim that, if we find that white neighborhoods have better police protection than black neighborhoods that we address the inequity by withdrawing police protection from all neighborhoods. Or that racial disparity in mortgage lending requires that mortgage lending be ended. Yet people make arguments exactly like this where capital punishment is concerned. . . .

It cannot be stressed too strongly that we do not face the choice of a defective system on capital punishment and a pristine system of imprisonment. Rather, nothing about the criminal justice system works perfectly. Death penalty opponents give the impression that the death penalty is uniquely flawed by the simple expedient of dwelling on the defects of capital punishment (real and imagined) and largely ignoring the defects in the way lesser punishments are meted out.

The death penalty meets the expectations we can reasonably place on any public policy. But it can't meet the absurdly inflated standards imposed by those who are culturally hostile to it. But then, no other policy can either.

FROM TESTIMONY OF PAUL H. RUBIN, PROFESSOR OF ECONOMICS AND LAW, EMORY UNIVERSITY, ATLANTA, GEORGIA, BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES,'' FEBRUARY 1, 2006

Modern research on the economics of crime began with the work of the Nobel Prize winning economist Gary Becker. One of Becker's arguments was that criminals should respond to incentives, where the major incentive in the criminal justice system is the probability and severity of punishment. Virtually all economists who study crime are now convinced that in the general case, this is true. An increased chance of punishment or a more severe sentence leads to reduced levels of crime. These reductions are not only due to incapacitation, but there is also a deterrent effect from increased severity and increased probability of punishment. When economists applied this argument to capital punishment, there was a political backlash, even though the theoretical grounds for believing it are the same as for any other class of punishments.

The debate in economics began with two papers by Isaac Ehrlich in the 1970s. Ehrlich, a student of Becker's, was the first to study capital punishment's deterrent effect using multi-variant regression analysis. This enabled Ehrlich to separate the effects on murder of many different factors, such as racial and age composition, the population, income, unemployment, and several other things. Ehrlich wrote two papers on capital punishment using different statistical techniques and data. Both of these found significant deterrent effects, about eight homicides deterred per execution, but the data available and the statistical methods meant that many people raised serious questions about his work and there were lots of papers using similar data and different methods and getting different results. Most of these studies suffer from flaws relative to what you can do now because of the data and the statistical methods available.

More recently, there have been 12 econometric or economic studies on capital punishment that have been conducted and published or accepted in refereed journals. Most of these studies used improved data and improved statistical techniques, various forms of multiple regression analysis, panel data analysis, and they look at things including demographics, economic factors, police effort, and so forth. They measured a marginal effect of execution. That is the effect of execution as it actually occurs given the alternatives that actually are available in the State and given that the person has already been convicted and usually sentenced. Virtually all 12 of these studies find a deterrent effect.

As I said, I was co-author of one of the studies which used 20 years of data from all U.S. counties to measure the effect of deterrent effect. Another study uses monthly data from all of the U.S. States to measure the short-term effect of capital punishment. Interestingly enough, this paper by my colleague, Joanna Shepherd, looks at different categories of murder to determine what kinds of murders are deterred by execution and she finds that all types of murders, including crimes of passion, are deterred, and she also finds that murders of both African-Americans and whites are deterred. So people raise racial questions about the implementation of capital punishment. We don't address that, but her work does show that lives of African-Americans are saved by capital punishment.

Another study looks at the Supreme Court moratorium in the 1970s and finds that relaxing this moratorium led to fewer murders.

Other papers use different methods and data, but they all—virtually all—but all of them find a deterrent effect. Usually the numbers in the reported literature are between three and 18 homicides deterred per execution, again, depending on which kind of study you are looking at.

There is one paper that has recently been published in the Stanford Law Review that is critical of some of these studies. The authors find that it is possible to use various statistical manipulations to apparently eliminate some of the deterrent effect that some of the studies have found. Interestingly enough, this paper has not been subject to the scientific refereeing process. It was published in a law review, where the refereeing is done by students. It is in the process of being reexamined and it is hard to know what it will find, but even then, this paper only considers some of the empirical papers and some of the methods used. There are still many other papers that it does not consider that also find deterrent effect. So I think at this time, we have to say that the weight of the evidence is pretty clearly that there is deterrence. This is what economic theory would predict. It predicts that people respond to incentives. There is no stronger incentive than avoiding being executed. And the weight of the statistical evidence, as it exists now, is consistent with the deterrent effect.

FROM THE OPINION OF JUSTICE ANTONIN SCALIA, CONCURRING, IN KANSAS V. MICHAEL LEE MARSH II (548 U.S. ___), U.S. SUPREME COURT, JUNE 26, 2006

Since 1976 there have been approximately a half million murders in the United States. In that time, 7,000 murderers have been sentenced to death; about 950 of them have been executed; and about 3,700 inmates are currently on death row. As a consequence of the sensitivity of the criminal justice system to the due-process rights of defendants sentenced to death, almost two-thirds of all death sentences are overturned. ''Virtually none'' of these reversals, however, are attributable to a defendant's '''actual innocence.''' Most are based on legal errors that have little or nothing to do with guilt. The studies cited by the dissent demonstrate nothing more.

Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment—in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes— outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.

FROM TESTIMONY OF WILLIAM G. OTIS, FORMER CHIEF OF THE APPELLATE DIVISION, U.S. ATTORNEY'S OFFICE, EASTERN DISTRICT OF VIRGINIA, FALLS CHURCH, VIRGINIA, BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''OVERSIGHT OF THE FEDERAL DEATH PENALTY,'' JUNE 27, 2007

Today's discussion of the federal death penalty cannot be divorced from the broader national debate about capital punishment. Indeed, if anything, the federal government's death penalty procedures are widely recognized to be among the most careful and painstaking of any jurisdiction. So if the federal death penalty were to be abolished, it is difficult to see why capital punishment should exist anywhere in the country.

But it should, in federal law as elsewhere. The central reason for opposing abolition of the death penalty is that it is a one-size-fits-all proposition. It would intentionally turn a blind eye to the facts of any particular case, no matter how horrible the crime, how many victims, or how grotesque their fate. Yet more remarkably, it would refuse to consider the facts even where the typical objections to the death penalty, including those that inspire this hearing, have no application whatever. If the proposed legislation had been the law 10 years ago, for example, Timothy McVeigh would be with us today. Presumably he would still be seeking a national audience like the one he got on Sixty Minutes to explain why he was justified in murdering 168 of his fellow creatures, including 19 toddlers in the day care center at the Murrah Building.

It would be wrong to prohibit our juries—the conscience of our communities—from imposing the death penalty on a person like McVeigh. It would be especially wrong if it were the product of an a priori edict drafted in Washington. And to promulgate this edict on the basis of questions that might occur in some cases some of the time, but will often have nothing to do with the case at hand, would be incomprehensible. This was aptly explained by none other than Barry Scheck, the head of the Innocence Project, who told the Washington Post (May 2, 2001, p. A3) that, ''in McVeigh's case, 'there's no fairness issue. . . . There's no innocence issue. Millions of dollars were spent on his defense. You look at all the issues that normally raise concern about death penalty cases, and not one of them is present in this case, period.''' Mr. Scheck might have added explicitly what was implicit in his remarks, namely, that there was no racial issue either, a fact no serious person disputes. But today's proposed bill would have prevented McVeigh's execution, or the execution of others like him, notwithstanding the fact that the stated reasons for the bill, racial and otherwise, were entirely irrelevant to his case, and will be entire irrelevant to dozens if not hundreds of future cases.

Some will say it's unfair in the context of this hearing to use McVeigh as an example, but that is not so. There is nothing ''unfair'' in discussing at a hearing about the death penalty one compelling illustration of why we should keep it. Beyond that, McVeigh is fairly representative. Over the last 50 years, two-thirds of those executed by the federal government have been, like McVeigh, white. This largely mirrors the national experience: Since the death penalty was reinstated by the Supreme Court in 1976, nearly three-fifths of executed criminals have been white.

We understand all too well that al-Qaeda terrorists have butchered innocents across the globe, from Madrid to London to New York and Arlington. If today's proposed legislation becomes law, the federal government's ability even to ask a jury to consider the death penalty for terrorists will cease to exist, even if Osama bin Laden himself is in the dock. Millions of Americans would consider that an outrage, and a huge majority would consider it unjust. It is noteworthy that a majority of even those who in general oppose the death penalty thought it was appropriate for our domestic terrorist, Timothy McVeigh (USA Today /CNN/Gallup poll, published in USA Today, May 4, 2001, pp. A1–A2). All told, slightly more than 80% of the public thought the death penalty was right in that case. This bill would tell that 80% that, unbeknownst to them, their views are the stalking horse of racism. But that is not true, and it is not the American public I came to know in my years as a prosecutor. We are a fair-minded and conscientious people. When the moral compass of 80% of our fellow citizens says that the death penalty should be imposed, as it did for McVeigh and will for Osama and others, it is not for Congress to tell them—as this bill would—that their sense of justice doesn't count.

To preserve our country's heritage that justice must turn on the facts of each case individually considered, I respectfully submit that federal juries should continue to have discretion, acting out of conscience in egregious cases, to impose the death penalty.

FROM TESTIMONY OF DAVID B. MUHLHAUSEN, SENIOR POLICY ANALYST, CENTER FOR DATA ANALYSIS, HERITAGE FOUNDATION, WASHINGTON, D.C., BEFORE THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND PROPERTY RIGHTS, HEARING ON ''OVERSIGHT OF THE FEDERAL DEATH PENALTY,'' JUNE 27, 2007

While opponents of capital punishment have been very vocal in their opposition, Gallup opinion polls consistently demonstrate that the American public overwhelmingly supports capital punishment. In Gallup's most recent poll, 67 percent of Americans favor the death penalty for those convicted of murder, while only 28 percent are opposed. From 2000 to the most recent poll in 2006, support for capital punishment consistently runs a 2:1 ratio in favor.

Despite strong public support for capital punishment, federal, state, and local officials must continually ensure that its implementation rigorously upholds constitutional protections, such as due process and equal protection of the law. However, the criminal process should not be abused to prevent the lawful imposition of the death penalty in appropriate capital cases.

As of December 2005, there were 37 prisoners under a sentence of death in the federal system. Of these prisoners, 43.2 percent were white, while 54.1 percent were African-American. The fact that African-Americans are a majority of federal prisoners on death row and a minority in the overall United States population may lead some to conclude that the federal system discriminates against African-Americans. However, there is little rigorous evidence that such disparities exist in the federal system.

Under a competitive grant process, the National Institute of Justice awarded the RAND Corporation a grant to determine whether racial disparities exist in the federal death penalty system. The resulting 2006 RAND study set out to determine what factors, including the defendant's race, victim's race, and crime characteristics, affect the decision to seek a death penalty case. Three independent teams of researchers were tasked with developing their own methodologies to analyze the data. Only after each team independently drew their own conclusions did they share their findings with each other.

When first looking at the raw data without controlling for case characteristics, RAND found that large race effects with the decision to seek the death penalty are more likely to occur when the defendants are white and when the victims are white. However, these disparities disappeared in each of the three studies when the heinousness of the crimes was taken into account. The RAND study concludes that the findings support the view that decisions to seek the death penalty are driven by characteristics of crimes rather than by race. RAND's findings are very compelling because three independent research teams, using the same data but different methodologies, reached the same conclusions.

While there is little evidence that the federal capital punishment system treats minorities unfairly, some may argue that the death penalty systems in certain states may be discriminatory. One such state is Maryland. In May 2001, then-Governor Parris Glendening instituted a moratorium on the use of capital punishment in Maryland in light of concerns that it may be unevenly applied to minorities, especially African-Americans. In 2000, Governor Glendening commissioned University of Maryland Professor of Criminology Ray Paternoster to study the possibility of racial discrimination in the application of the death penalty in Maryland. The results of Professor Paternoster's study found that black defendants who murder white victims are substantially more likely to be charged with a capital crime and sentenced to death.

In 2003, Governor Robert L. Ehrlich wisely lifted the moratorium. His decision was justified. In 2005, a careful review of the study by Professor of Statistics and Sociology Richard Berk of the University of California, Los Angeles, and his coauthors found that the results of Professor Paternoster's study do not stand up to statistical scrutiny. According to Professor Berk's re-analysis, ''For both capital charges and death sentences, race either played no role or a small role that is very difficult to specify. In short, it is very difficult to find convincing evidence for racial effects in the Maryland data and if there are any, they may not be additive.'' Further, race may have a small influence because ''cases with a black defendant and white victim or 'other' racial combination are less likely to have a death sentence.''

Federal, state, and local officials need to recognize that the death penalty saves lives. How capital punishment affects murder rates can be explained through general deterrence theory, which supposes that increasing the risk of apprehension and punishment for crime deters individuals from committing crime. Nobel laureate Gary S. Becker's seminal 1968 study of the economics of crime assumed that individuals respond to the costs and benefits of committing crime.

According to deterrence theory, criminals are no different from law-abiding people. Criminals ''rationally maximize their own self-interest (utility) subject to constraints (prices, incomes) that they face in the marketplace and elsewhere.'' Individuals make their decisions based on the net costs and benefits of each alternative. Thus, deterrence theory provides a basis for analyzing how capital punishment should influence murder rates. Over the years, several studies have demonstrated a link between executions and decreases in murder rates. In fact, studies done in recent years, using sophisticated panel data methods, consistently demonstrate a strong link between executions and reduced murder incidents.

The rigorous examination of the deterrent effect of capital punishment began with research in the 1970s by Isaac Ehrlich, currently a University of Buffalo Distinguished Professor of Economics. Professor Ehrlich's research found that the death penalty had a strong deterrent effect. While his research was debated by other scholars, additional research by Professor Ehrlich reconfirmed his original findings. In addition, research by Professor Stephen K. Layson of the University of North Carolina at Greensboro strongly reconfirmed Ehrlich's previous findings.

Numerous studies published over the past few years, using panel data sets and sophisticated social science techniques, are demonstrating that the death penalty saves lives. Panel studies observe multiple units over several periods. The addition of multiple data collection points gives the results of capital punishment panel studies substantially more credibility than the results of studies that have only single before-and-after intervention measures. Further, the longitudinal nature of the panel data allows researchers to analyze the impact of the death penalty over time that cross-sectional data sets cannot address.

Using a panel data set of over 3,000 counties from 1977 to 1996, Professors Hashem Dezhbakhsh, Paul R. Rubin, and Joanna M. Shepherd of Emory University found that each execution, on average, results in 18 fewer murders. Using state-level panel data from 1960 to 2000, Professors Dezhbakhsh and Shepherd were able to compare the relationship between executions and murder incidents before, during, and after the U.S. Supreme Court's death penalty moratorium. They found that executions had a highly significant negative relationship with murder incidents. Additionally, the implementation of state moratoria is associated with the increased incidence of murders.

Separately, Professor Shepherd's analysis of monthly data from 1977 to 1999 found three important findings.

First, each execution, on average, is associated with three fewer murders. The deterred murders included both crimes of passion and murders by intimates.

Second, executions deter the murder of whites and African-Americans. Each execution prevents the murder of one white person, 1.5 African-Americans, and 0.5 persons of other races.

Third, shorter waits on death row are associated with increased deterrence. For each additional 2.75-year reduction in the death row wait until execution, one murder is deterred.

Professors H. Naci Mocan and R. Kaj Gittings of the University of Colorado at Denver have published two studies confirming the deterrent effect of capital punishment. The first study used state-level data from 1977 to 1997 to analyze the influence of executions, commutations, and removals from death row on the incidence of murder. For each additional execution, on average, about five murders were deterred. Alternatively, for each additional commutation, on average, five additional murders resulted. A removal from death row by either state courts or the U.S. Supreme Court is associated with an increase of one additional murder. Addressing criticism of their work, Professors Mocan and Gittings conducted additional analyses and found that their original findings provided robust support for the deterrent effect of capital punishment.

Two studies by Paul R. Zimmerman, a Federal Communications Commission economist, also support the deterrent effect of capital punishment. Using state-level data from 1978 to 1997, Zimmerman found that each additional execution, on average, results in 14 fewer murders. Zimmerman's second study, using similar data, found that executions conducted by electrocution are the most effective at providing deterrence.

Using a small state-level data set from 1995 to 1999, Professor Robert B. Ekelund of Auburn University and his colleagues analyzed the effect that executions have on single incidents of murder and multiple incidents of murder. They found that executions reduced single murder rates, while there was no effect on multiple murder rates.

In summary, the recent studies using panel data techniques have confirmed what we learned decades ago: Capital punishment does, in fact, save lives. Each additional execution appears to deter between three and 18 murders. While opponents of capital punishment allege that it is unfairly used against African-Americans, each additional execution deters the murder of 1.5 African-Americans. Further moratoria, commuted sentences, and death row removals appear to increase the incidence of murder.