1. The Death Penalty: Deterrence and Question of Racial Equality
Law and Social Science L6172
Prof. Jeffrey Fagan
March
Vijay Singh

2. 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

3. 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

4. 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

5. 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

6. What does all this mean?

7. Erlich and his critics…
Period Effects
Nationally Aggregated Data
LWOP Effect?
Reliability of Information
Retest Troubles

8. Later attempts at perfection
Other ways to conduct the study:
Matching
Similar to Sellin study, using similar states
Local Deterrence / Temporary Effects
- Some studies have shown that there is a deterrent effect close to execution site, for short times

9. Interested in reading more???
Prof. Fagan's Testimony
Law and Econ View ???
More Studies...and Death Penalty Reading

10. 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

11. 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

12. McClesky: The court’s holding
Court of Appeals and SCOTUS accepted the study as true
However, no discriminatory intent
Concern over slippery slope

13. Proportionality Review
Problems:
Universe Problems
Subjectivity
Replication
Solutions:
Scale / Index Construction
Objective criteria / Guidelines for judges

14. Dr. Baldus: His work and findings
Commissioned by the LDF
Two Parts:
Procedure
Charging and Sentencing
Universe:
2,485 Post-Furman Cases in Georgia
Most comprehensive study to date

15. What did he find?? Black D / White Victim 22% White D / White Victim
Race of victim equal to:
Multiple stabbings
Serious (felony) prior record
Armed robbery involved
Prosecutorial Discretion
More likely to seek death penalty
Less likely to grant plea bargain
4% Black D’s / 7% White D’s
Black D / White Victim
22%
White D / White Victim 8%
Black D / Black Victim 1%
White D/ Black Victim 3%

16. Problems with mid-level cases

17. Problems with mid level cases

18. How bad is this study? Data in parole files was incomplete
Differences in Coding
Rebuttable Presumption

19. 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

20. Going Forward Justice Powell Daubert standards Judicial Education ?
“my understanding of statistical analysis ranges from limited
to zero”
Daubert standards
Judicial Education ?