9-22-00

USA:

The dozen states that have chosen not to enact the death penalty since

the Supreme Court ruled in 1976 that it was constitutionally permissible

have not had higher homicide rates than states with the death penalty,

government statistics and a new survey by The New York Times show.

Indeed, 10 of the 12 states without capital punishment have homicide

rates below the national average, Federal Bureau of Investigation data

shows, while 1/2 the states with the death penalty have homicide rates

above the national average. In a state-by- state analysis, The Times

found that during the last 20 years, the homicide rate in states with the

death penalty has been 48 % to 101 % higher than in states without the

death penalty.

The study by The Times also found that homicide rates had risen and

fallen along roughly symmetrical paths in the states with and without the

death penalty, suggesting to many experts that the threat of the death

penalty rarely deters criminals.

"It is difficult to make the case for any deterrent effect from these

numbers," said Steven Messner, a criminologist at the State University of

New York at Albany, who reviewed the analysis by The Times. "Whatever the

factors are that affect change in homicide rates, they don't seem to

operate differently based on the presence or absence of the death penalty

in a state."

That is one of the arguments most frequently made against capital

punishment in states without the death penalty - that and the assertion

that it is difficult to mete out fairly. Opponents also maintain that it

is too expensive to prosecute and that life without parole is a more

efficient form of punishment.

Prosecutors and officials in states that have the death penalty are as

passionate about the issue as their counterparts in states that do not

have capital punishment. While they recognize that it is difficult to

make the case for deterrence, they contend that there are powerful

reasons to carry out executions. Rehabilitation is ineffective, they

argue, and capital punishment is often the only penalty that matches the

horrific nature of some crimes. Furthermore, they say, society has a

right to retribution and the finality of an execution can bring closure

for victims' families.

Polls show that these views are shared by a large number of Americans.

And, certainly, most states have death penalty statutes. 12 states have

chosen otherwise, but their experiences have been largely overlooked in

recent discussions about capital punishment.

"I think Michigan made a wise decision 150 years ago," said the state's

governor, John Engler, a Republican. Michigan abolished the death penalty

in 1846 and has resisted attempts to reinstate it. "We're pretty proud of

the fact that we don't have the death penalty," Governor Engler said,

adding that he opposed the death penalty on moral and pragmatic grounds.

Governor Engler said he was not swayed by polls that showed 60 % of

Michigan residents favored the death penalty. He said 100 % would like

not to pay taxes.

In addition to Michigan, and its Midwestern neighbors Iowa, Minnesota,

North Dakota and Wisconsin, the states without the death penalty are

Alaska, Hawaii, West Virginia, Rhode Island, Vermont, Maine and

Massachusetts, where an effort to reinstate it was defeated last year.

No single factor explains why these states have chosen not to impose

capital punishment. Culture and religion play a role, as well as

political vagaries in each state. In West Virginia, for instance, the

state's largest newspaper, The Charleston Gazette, supported a drive to

abolish the death penalty there in 1965. Repeated efforts to reinstate

the death penalty have been rebuffed by the legislature.

The arguments for and against the death penalty have not changed much.

At Michigan's constitutional convention in 1961, the delegates heard

arguments that the death penalty was not a deterrent, that those executed

were usually the poor and disadvantaged, and that innocent people had

been sentenced to death.

"The same arguments are being made today," said Eugene G. Wanger, who

had introduced the language to enshrine a ban on capital punishment in

Michigan's constitution at that convention. The delegates overwhelmingly

adopted the ban, 141 to 3. Mr. Wanger said 2/3 of the delegates were

Republicans, like himself, and most were conservative. Last year, a

former state police officer introduced legislation to reinstate the death

penalty. He did not even get the support of the state police association,

and the legislation died.

In Minnesota, which abolished capital punishment in 1911, 60 % of the

residents support the death penalty, said Susan Gaertner, a career

prosecutor in St. Paul and the elected county attorney there since 1994.

But public sentiment had not translated into legislative action, Ms.

Gaertner said. "The public policy makers in Minnesota think the death

penalty is not efficient, it is not a deterrent, it is a divisive form

of punishment that we simply don't need," she said.

In Honolulu, the prosecuting attorney, Peter Carlisle, said he had

changed his views about capital punishment, becoming an opponent, after

looking at the crime statistics and finding a correlation between

declines in general crimes and in the homicide rates. "When the smaller

crimes go down - the quality of life crimes - then the murder rate goes

down," Mr. Carlisle said.

Therefore, he said, it was preferable to spend the resources available to

him prosecuting these general crimes. Prosecuting a capital case is

"extremely expensive," he said.

By the very nature of the gravity of the case, defense lawyers and

prosecutors spend far more time on a capital case than a noncapital one.

It takes longer to pick a jury, longer for the state to present its case

and longer for the defense to put on its witnesses. There are also

considerably greater expenses for expert witnesses, including

psychologists and, these days, DNA experts. Then come the defendant's

appeals, which can be considerable, but are not the biggest cost of the

case, prosecutors say.

Mr. Carlisle said his views on the death penalty had not been affected by

the case of Bryan K. Uyesugi, a Xerox copy machine repairman who gunned

down 7 co-workers last November in the worst mass murder in Hawaii's

history. Mr. Uyesugi was convicted in June and is serving life without

chance of parole.

Mr. Carlisle has doubts about whether the death penalty is a deterrent.

"We haven't had the death penalty, but we have one of the lowest murder

rates in the country," he said. The F.B.I.'s statistics for 1998, the

last year for which the data is available, showed Hawaii's homicide rate

was the 5th-lowest.

The homicide rate in North Dakota, which does not have the death penalty,

was lower than the homicide rate in South Dakota, which does have it,

according to F.B.I. statistics for 1998. Massachusetts, which abolished

capital punishment in 1984, has a lower rate than Connecticut, which has

6 people on death row; the homicide rate in West Virginia is 30 % below

that of Virginia, which has one of the highest execution rates in the

country.

Other factors affect homicide rates, of course, including unemployment

and demographics, as well as the amount of money spent on police,

prosecutors and prisons.

But the analysis by The Times found that the demographic profile of

states with the death penalty is not far different from that of states

without it. The poverty rate in states with the death penalty, as a

whole, was 13.4 % in 1990, compared with 11.4 % in states without the

death penalty.

Mr. Carlisle's predecessor in Honolulu, Keith M. Kaneshiro, agrees with

him about deterrence. "I don't think there's a proven study that says

it's a deterrent," Mr. Kaneshiro said. Still, he said, he believed that

execution was warranted for some crimes, like a contract killing or the

slaying of a police officer. Twice while he was prosecuting attorney, Mr.

Kaneshiro got a legislator to introduce a limited death penalty bill,

but, he said, they went nowhere.

In general, Mr. Kaneshiro said, Hawaiians fear that the death penalty

would be given disproportionately to racial minorities and the poor.

In Milwaukee, the district attorney for the last 32 years, E. Michael

McCann, shares the view that the death penalty is applied unfairly to

minorities. "It is rare that a wealthy white man gets executed, if it

happens at all," Mr. McCann said.

Those who "have labored long in the criminal justice system know,

supported by a variety of studies and extensive personal experience, that

blacks get the harsher hand in criminal justice and particularly in

capital punishment cases," Mr. McCann wrote in "Opposing Capital

Punishment: A Prosecutor's Perspective," published in the Marquette Law

Review in 1996. 43 % of the people on death row across the country are

African-Americans, according to the NAACP Legal Defense and Educational

Fund.

The death penalty also has been employed much more often when the victim

was white - 82 % of the victims of death row inmates were white, while

only 50 % of all homicide victims were white.

Supporters of capital punishment who say that executions are justified by

the heinous nature of some crimes often cite the case of Jeffrey L.

Dahmer, the serial killer who murdered and dismembered at least 17 boys

and men, and ate flesh from at least 1 of his victims.

Mr. McCann prosecuted Mr. Dahmer, but the case did not dissuade him from

his convictions on the death penalty. "To participate in the killing of

another human being, it diminishes the respect for life. Period," Mr.

McCann said. He added, "Although I am a district attorney, I have a gut

suspicion of the state wielding the power of the death over anybody."

In Detroit, John O'Hair, the district attorney, similarly ponders the

role of the state when looking at the death penalty.

Borrowing from Justice Louis E. Brandeis, Mr. O'Hair said: "Government is

a teacher, for good or for bad, but government should set the example. I

do not believe that government engaging in violence or retribution is the

right example. You don't solve violence by committing violence."

Detroit has one of the highest homicide rates in the United States - 5

times more than New York in 1998 - but Mr. O'Hair said bringing back the

death penalty is not the answer.

"I do not think the death penalty is a deterrent of any consequence in

preventing murders," said Mr. O'Hair, who has been a prosecutor and judge

for 30 years. Most homicides, he said, are "impulsive actions, crimes of

passion," in which the killers do not consider the consequences of what

they are doing.

Nor, apparently, do the people of Detroit see the death penalty as a way

of cutting crime. Only 45 % of Detroit residents favored capital

punishment, a poll by EPIC/MRA, a polling organization in Lansing, Mich.,

found last year; in Michigan over all, 59 % favored executions, which is

roughly the level of support for the death penalty nationally.

To illustrate the point that killers rarely considered the consequences

of their actions, a prosecutor in Des Moines, John Sarcone, described the

case of 4 people who murdered 2 elderly women. They killed 1 in Iowa, but

drove the other one across the border to Missouri, a state that has the

death penalty.

Mr. Sarcone said Iowa prosecutors were divided on the death penalty, and

legislation to reinstate it was rejected by the Republican-controlled

legislature in 1997. The big issue was cost, he said.

Last year in Michigan, Larry Julian, a Republican from a rural district,

introduced legislation that would put the death penalty option to a

referendum.

But Mr. Julian, a retired state police officer, had almost no political

support for the bill, not even from the Michigan State Troopers

Association, he said, and the bill died without a full vote. The

Catholic Church lobbied against it.

State officials in Michigan are generally satisfied with the current law.

"Our policies in Michigan have worked without the death penalty," said

Matthew Davis, spokesman for the Michigan Department of Corrections.

"Instituting it now may not be the most effective use of people's money."

Today in Michigan, 2,572 inmates are serving sentences of life without

parole, and they tend to cause fewer problems than the general prison

population, Mr. Davis said.

They are generally quieter, not as insolent, more likely to obey the

rules and less likely to try to escape, he said. Their motivation is

quite clear, he said: to get into a lower security classification. When

they come in, they are locked up 23 hours a day, 7 days a week, and fed

through a small hole in the door. After a long period of good behavior,

they can live in a larger cell, which is part of a larger, brighter room,

eat with 250 other prisoners, and watch television.

One thing they cannot look forward to is getting out. In Michigan, life

without parole means you stay in prison your entire natural life, not

that you get out after 30 or 40 years, Mr. Davis said.

In many states, when life without parole is an option the public's

support for the death penalty drops sharply. "The fact that we have life

without parole takes a lot of impetus from people who would like to see

the death penalty," said Ms. Gaertner, the chief prosecutor in St. Paul.

In most states with the death penalty, life without parole is not an

option for juries. In Texas, prosecutors have successfully lobbied

against legislation that would give juries the option of life without

parole instead of the death penalty.

Mr. Davis said a desire "to extract a pound of flesh" was behind many of

the arguments for capital punishment. "But that pound of flesh comes at a

higher price than a lifetime of incarceration."

Mr. O'Hair, the Detroit prosecutor said, "If you're after retribution,

vengeance, life in prison without parole is about as punitive as you can

get."

*********************

In its analysis, The New York Times examined homicide rates in 2 groups

of states: the 12 states without the death penalty and the 36 states that

passed laws within 10 years of the Supreme Court's 1972 Furman v. Georgia

decision, which overturned all existing death penalty statutes. (New York

and Kansas did not adopt the death penalty until the 1990's.)

The analysis found that homicide rates have not declined any more in the

states that instituted the death penalty than in states that did not.

In fact, year after year, homicide rates in states with death penalties

roughly mirrored the rates in states without capital punishment, with

death penalty states 48 % to 101 % higher. That trend, criminologists

say, provides evidence that something besides enactment of capital

punishment laws drives homicides.

"It's clear that the states with the death penalty may want it more

because they have more homicides," said Alfred Blumstein, director of the

National Consortium on Violence Research at Carnegie Mellon University.

"But it's not clear that it does them any good in terms of reducing

homicide."

Even after executions resumed, homicide rates appeared unaffected, the

analysis found. In the 21 states that carried out their 1st executions by

1993, homicide rates declined a collective 5 % over the 4 years after the

execution. But rates declined 12 % in states that had not had executions

in the same years.

The Times also looked at contiguous and demographically similar states,

and found no pattern that differentiated death penalty states from those

without capital punishment. Massachusetts and Rhode Island, with no death

penalty, had homicide rates of 3.7 per 100,000 and 4.2 per 100,000,

respectively, from 1977 to 1997, while Connecticut, a death penalty

state, had a rate of 4.9 per 100,000.

The survey by The Times is similar to the type of analysis criminologists

used in the years before the Supreme Court's Furman decision to conclude

that state homicide rates were not affected by death penalty laws. The

review by The Times confirms that those patterns appear to continue under

the new era of capital punishment statutes.

Some researchers still contend that the death penalty has a measurable

deterrent effect. "The statistics involved in such comparisons have long

been recognized as devoid of scientific merit," Prof. Isaac Ehrlich, of

the State University of New York at Buffalo, said of the analysis by The

Times. He said that if variations like unemployment, income inequality,

likelihood of apprehension and willingness to use the death penalty are

accounted for, the death penalty shows a significant deterring effect.

Most criminologists, however, discount Professor Ehrlich's work.