Ultimate Punishment (13 page)

Ackerman family…Nicaricos
: A. Barnum, “Melissa's Killer Pleads Guilty, Gets Life,”
Chicago Tribune
[National Edition], 11/20/85, Section C, p. 1, describes Mr. Ackerman's reaction to the plea deal. The Nicaricos' doggedness about the case and their disappointment with Hernandez's eighty-year sentence, rather than death, is recorded at J. Sjostrom, “Hernandez Gets 80-Year Term in Nicarico Death,”
Chicago Tribune
[DuPage Sports Final], p. 1. See another article quoted without attribution at
http://www.littlest angels.net/Stories229.html
.

American law has exalted the jury's role in capital matters
: The Supreme Court's decision in June 2002,
Ring v. Arizona
, 536 U.S. 584, effectively granted to every defendant the right to have his fate decided by a jury. That was already the prevailing practice in all but nine states that impose the death penalty. The reason for the jury's unique prominence in making capital decisions is probably best expressed in the dissent of Justice Stevens in
Spaziano v. Florida
, 468 U.S. 447, 489–90 (1984), where he said, “If the prosecutor cannot convince a jury that the defendant deserves to die, there is an unjustifiable risk that imposition of that punishment will not reflect the community's sense of the defendant's ‘moral guilt.' ”

better job in providing compassionate services
: Report, pp. 192–94, and Technical Appendix, Sections 1B & C, detail issues related to survivors.

“
only reason to be for it
”: The third presidential debate took place on 10/17/00 at Washington University in St. Louis.

has a murder rate well above the national average
: As of March of this year, Texas had executed 299 of the 834 persons put to death in the United States since
Gregg
reauthorized capital punishment. See P. Kilborn, “Prominent Ex-Judges and Prosecutors Lead Fight Against Milestone Execution Today in Texas,”
The New York Times
[National Edition], 3/12/03, at A16. A summary of the FBI's Uniform Crime Reports and the murder rates in all the states from 1995 to 2001 is posted on the Death Penalty Information Web site at
http://www.deathpenaltyinfo.org/murderrates.html
. As an aside, stereotypes notwithstanding, Texas did not death-sentence more often than average, condemning 15.33 defendants per 1,000 homicides. But Texas
executes
a far higher percentage of those on death row than the national norms, suggesting that whatever issues exist in Texas have to do with the limitations the state has imposed on judicial review. See Liebman,
http://justice.policy.net/jpreport/figure 18.html
and
http://justice.policy.net/jpreport/texas.pdf
. See also National Center for Policy Analysis, “Capital Punishment Rates in Death Penalty States,” 2/15/02, posted at
http://www.ncpa.org/iss/cri/2002/pdo21502f.html
, and another of Liebman's reports, James S. Liebman et al., “A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It,” University of Columbia Law School, February 2002, posted at
http://www.law.columbia.edu/brokensystem2/index2.html
. Notably, more than half of Texas' 254 counties imposed no death sentences during Liebman's study period, but Harris County, whose seat is Houston, has sent more persons to death row than any other county in America.

consolidated murder rate in states without the death penalty…consistently lower
: Regarding state cross-comparisons, see
http://www.death penaltyinfo.org/DeterMRates. html; The New York Times
, 9/22/00, p. 1. Various studies and statistics regarding deterrence are summarized on the outstanding Web site of the Death Penalty Information Center at
http://www.deathpenaltyinfo.org/deter.html -
STUDIES
.

brutalization effect…proof
: See for example, W. Bailey, “Deterrence, Brutalization, and the Death Penalty: Another Examination of Oklahoma's Return to Capital Punishment,” 36
Criminology
, pp. 711–33 (1998), for a disciplined examination of both brutalization and deterrence in Oklahoma's homicide statistics.

murder rates drop…since 1993
: See J. Fox and M. Zawitz, “Homicide Trends in the United States,” United States Department of Justice, Bureau of Justice Statistics,
http://www.ojp.usdoj.gov/bjs/homicide/homtrnd.htm
.

clearest deterrent effect from executions
: Without executions, the death penalty would come to be perceived as an empty threat. The certainty of punishment is key to its effectiveness, according to deterrence theory. W. Bailey and R. Peterson, “Murder, Capital Punishment and Deterrence: A Review of the Literature,” in
The Death Penalty in America
, p. 140. See the sources discussed in the next several notes for elaboration, including H. Dezhbakhsh et al., “Does Capital Punishment Have a Deterrent Effect? New Evidence from Post Moratorium Panel Data,” January 2001, pp. 20–21, which can be downloaded at
http://userwww.service.emory.edu/ñcozden/dezhbakhsh_01_cover.html
[hereafter “Dezhbakhsh”]. Dezhbakhsh, pp. 22–23, found a deterrent effect in arrests, sentencings, and executions, but claimed their most robust results were in connection with executions. The claim that arrests produce a deterrent effect, given that the vast majority of arrests do not result in a death sentence, hardly supports capital punishment, as opposed to locking up bad guys.

“
studies…yielded…fairly consistent pattern of non-deterrence
”: W. Bailey & R. Peterson, “Murder, Capital Punishment and Deterrence,” 50
Journal of Social Issues
, p. 53, Summer 1994.

Eighty percent said it did not
: M. Radelet and R. Akers, “Deterrence and the Death Penalty: The Views of the Experts,” 87
Journal of Criminal Law and Criminology
1, Fall 1996.

police chiefs…inaccurate to say…death penalty…reduces…homicides
: See R. Dieter, “On the Front Line: Law Enforcement Views on the Death Penalty,” posted at
http://www.deathpenaltyinfo.org/dpic.ro3.html
, which presents the results of the Hart poll.

academic support for deterrence…from free-market economists
: E.g., Ehrlich, “The Deterrent Effect of Capital Punishment,” 65
The American Economic Review
, pp. 397–417 (1975); H. Dezhbakhsh passim.

Ehrlich's results…U.S. Supreme Court…reauthorize capital punishment
: See
Gregg v. Georgia
for the Court's discussion of deterrence. The Court appeared less than fully persuaded, remarking: “Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The results simply have been inconclusive.” 428 U.S. at 184–85. Notwithstanding that judgment, the Court ruled that legislators were within constitutional bounds in finding deterrence a justification for the death penalty.

Ehrlich and his followers have been stingingly criticized
: Peck, “The Deterrent Effect of Capital Punishment: Ehrlich and His Critics,” 85
Yale L.J
. 359 (1976); Baldus & Cole, “A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punishment,” 85
Yale L.J.
170 (1975); Bowers & Pierce, “The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment,” 85
Yale L.J.
187 (1975); W. Bailey and R. Peterson, “Murder, Capital Punishment and Deterrence: A Review of the Literature,” in
The Death Penalty in America
, pp. 135–61.

A 2001 paper…showed that murders are more prevalent in rural areas
: The 2001 study that found an inverse correlation between murder and population density was Dezhbakhsh, p. 21.

Defenders…adhere to the numbers
: For example, Dezhbakhsh, pp. 10–12, accepts the proposition that some homicides are not deferrable, acknowledges there's no verifiable way to categorize which are and which aren't, and claims, nonetheless, those limitations have no impact on his results.

period between conviction and execution…eleven and a half years
: U.S. Department of Justice, Bureau of Justice Statistics
Bulletin
, December 2001, p. 1, gave the average time between conviction and execution in 2000 as eleven and a half years.

researchers seem to agree…death penalty is more expensive
: A number of cost studies were summarized by the Commission in our Report, pp. 197–99.

new study…costs…death penalty…more
: See Report, p. 198, and M. Goodpaster, “Cost Comparison Between a Death Penalty Case and a Case Where the Charge and Conviction Is Life Without Parole,” in Indiana Report, pp. 119–22 F.

amount saved by abolition is small
: See Illinois State Budget Update, Fiscal Year 2003, posted at
http://www.state.il.us/budget/BudSumm 03.pdf
. The Death Penalty Information Center, for example, says: “The most comprehensive study in the country found that the death penalty costs North Carolina $2.16 million per execution
over
the costs of a non—death penalty murder case with a sentence of imprisonment for life” (Duke University, May 1993). The study referred to, “The Costs of Processing Murder Cases in North Carolina,” is available on line at
www.pps.aas.duke.edu/people/faculty/cook/comnc.pdf
. Extrapolating, the DPIC says this means that in the United States we've spent an extra $1 billion since the death penalty was reestablished in 1976. The number is impressive until one bears in mind that it's derived over a period of twenty-seven years. Taking the DPIC estimate as correct nonetheless means that on an average basis, we've spent less than $40 million per year, with the costs spread over the thirty-eight death penalty states. See
http://www.deathpenaltyinfo.org/costs2.html
.

Sometimes a crime is so horrible
: In reapproving capital punishment, the U.S. Supreme Court, in
Gregg v. Georgia
, quoted the following from Lord Justice Denning, Master of the Rolls of the Court of Appeal in England: “Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else…The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not.”
Royal Commission on Capital Punishment, Minutes of Evidence
, 12/1/49, p. 207 (1950); 428 U.S. at 184n.30.

can get life…for…swiping a few videos
: The U.S. Supreme Court allowed to stand the sentence of fifty years to life imposed on Leandro Andrade for stealing videotapes worth a total of $153.54 from two Kmarts.
Lockyer v. Andrade
, _-US - (No. 01–1127, decided 3/5/03).

along with many others
: Memoir, by its nature, is a self-centered form. But I hope my account is clear that Alex's freedom is due to the work of many whose names have otherwise gone unmentioned. At Sonnenschein, we invested thousands of hours in this
probono
case, many of them given by Matt Tanner and Leslie Suson, two fine lawyers, and by two heroic paralegals, Mary Kramer and Lynette Johnson. When the appeal was concluded, I inveigled Dan Webb, my former boss as U.S. Attorney and perhaps America's most eminent trial lawyer, into agreeing to represent Alex if he was retried. Webb's shadow—and that of Dane Drobny and David Korupp, who worked with Dan at the firm of Winston and Strawn—was undoubtedly another factor in the prosecutor's decision to ultimately drop the case, as was the acquittal of Rolando Cruz obtained by Tom Breen, Matt Kennelly, Nan Nolan, and the ubiquitous Larry Marshall.

“
Why has the state not confessed error
”: See
Victims
, pp. 261–62, for the authors' account of the Hernandez oral argument.

night of October 25, 1994
: Chris Thomas's case was affirmed on appeal,
People v. Thomas
, 178 Ill. 2d 215, 687 N.E.2d 892 (1997). The required version of the facts, from the state's point of view, appears in the opening pages of the opinion. 178 Ill. 2d at 222–29. Further review of the case was denied by the U.S. Supreme Court, 524 U.S. 955 (1998).

Alton Coleman
: For a description of Alton Coleman's crime spree, see J. Greenberg and B. Glauber, “Virginia Charges Two Sniper Suspects,”
Chicago Tribune
[North Sports Final Edition], 11/7/02, Section N, p. 8, including quotations from my friend Jeremy Margolis about the case.

awful, but nonetheless more pedestrian killing
: The cases we regarded as more aggravated than Chris's to which I refer are Sanchez's, described in the opening pages here;
People v. Coleman
, 168 Ill. 2d 509, 660 N.E.2d 919 (1995), regarding the serial murderer;
People v. McNeal
, 175 Ill. 2d 335, 677 N.E.2d 841 (1997), the double murder;
People v. Enis
, 163 Ill. 2d 367, 645 N.E.2d 856 (1994), where the defendant killed his rape victim after she brought charges;
People v. Neal
, 111 Ill. 2d 180, 489 N.E.2d 845 (1985), the beating and stabbing; and
People v. Albanese
, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984), where the defendant killed many family members with arsenic and has since been executed.

death penalty statute…in 1977
: See Report, pp. 3–4, for the history of the Illinois Death Penalty statute.