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Important New Paper From ACLU Looks at Impact of Solitary Confinement on Death Row Inmates

Image via ACLU

Image via ACLU

The paper opens thusly:

Most death row prisoners in the United States are locked alone in small cells for 22 to 24 hours a day with little human contact or interaction; reduced or no natural light; and severe constraints on visitation, including the inability to ever touch friends or loved ones.

This stark reality endures at a time when the United States’ experiment with the death penalty is at a crossroads. On one hand, in 2013, another state repealed the death penalty ‟ Maryland. That makes six states in the last six years ‟ Maryland, Connecticut, Illinois, New Mexico, New Jersey, and New York ‟ that have repealed the death penalty, bringing the number of states without it to 18. Today, more than half of the states have either eliminated the death penalty completely or have not executed anyone for at least 10 years. Thirty states, plus federal and military jurisdictions, have not executed anyone in at least 5 years. This steady march toward repeal seems to indicate that it is only a matter of time before the Supreme Court will declare the death penalty cruel and unusual punishment and bar its use nationwide.

But until that time, many states will continue efforts to execute, often after death-sentenced prisoners have languished in solitary confinement on death row for years and even decades. Death row prisoners are subjected to these harsh conditions not because of their conduct in prison or any demonstrated dangerousness to staff or other prisoners. They are subjected to extreme isolation due to their sentences alone.

While many in the United States understand that part of the horror of the death penalty is living day in and day out with the threat of execution, most are unaware that the vast majority of death row prisoners also suffer under conditions of extreme isolation that compromise their physical and mental health and needlessly inflict pain and suffering. Indeed, researchers have found that the clinical effects of extreme isolation can actually be similar to those of physical torture. For this reason, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment found that solitary confinement conditions can amount to “inhuman and degrading treatment” and the United Nations Special Rapporteur on Torture has called for a global ban on solitary confinement in excess of 15 days.

The report also contains this horrid and harrowing description of what solitary confinement is really like, from Anthony Graves, a former death row inmate who was wrongfully convicted and ultimately exonerated of a crime he did not commit:

I saw guys who dropped their appeals because of the intolerable conditions. Before his execution, one inmate told me he would rather die than continue existing under these inhumane conditions. I saw guys come to prison sane, and leave this world insane, talking nonsense on the execution gurney. One guy suffered some of his last days smearing feces, lying naked in the recreation yard, and urinating on himself.

Check out the entire report here.

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Florida Lawmaker Apparently No Fan of Exonerating the Wrongfully Convicted

The New York Times

The New York Times

It’s no secret that Florida has a problem with wrongfully convicting people sentenced to the death penalty. This is evidenced by the 24 death row inmates that have been exonerated and freed from the cages that housed them and the possibility of the state taking their lives. Reason and rationality would certainly lead one to expect Florida policy makers to take this problem seriously and seek ways to ameliorate the menacing injustice of wrongful convictions. But this is Florida we’re talking about. 

Last summer, the Florida Innocence Commission, tasked with examining the problems that lead to wrongful convictions and recommending reforms, expired and was allowed to lapse by the legislature. If that wasn’t enough, new legislation was recently introduced in the Florida House by Rep. Matt Gaetz, Chairman of the Criminal Justice Subcommittee, that will severely limit the post-conviction recourse of those convicted and sentenced to death — legislation that will only serve to further exacerbate this problem. The bills, SJR 1740 and SB 1750, would let politicians rather than the Florida Supreme Court determine when someone can request post-conviction relief and would then set those rules in a manner that would make it extremely difficult for attorneys and inmates to challenge death sentences.

It goes without saying that there is no remedying a wrongful execution, which makes Rep. Gaetz’s proposed legislation all the more disturbing. When combined with the already horrid state of affairs in the Florida criminal justice system, limiting the scope of appeals and tying post-conviction relief to the whims of politicians who are always trying to out “tough-on-crime” one another is almost certain to end in the death of innocents in the future.

Rather than trying to ensure that fellow citizens are swiftly executed by the state without proper due process and appellate procedures, Florida legislators should be acting to limit wrongful convictions and these miscarriages of justice. Instead of attempting to expedite death, a good start would be following up on the findings from the Florida Innocence Commission’s final report to further investigate, examine, and reform the problems that lead to wrongful convictions, including “studying false eyewitness identifications, interrogation techniques, false confessions, the use of informants, the handling of forensic evidence, attorney competence and conduct, the processing of cases and the administration of the death penalty.”

What Impact Does Capital Punishment Have On The Homicide Rate?

Unfortunately, research shows that we just don’t really know — as pointed out in this Bloomberg piece [h/t Sentencing Law and Policy]:

That’s the conclusion of the National Academy of Sciences, which typically plays the role of impartial arbiter in these social-science debates. Their expert panel recently concluded that existing research “is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates,” and that such studies “should not influence policy judgments about capital punishment.”

The panel’s conclusions largely echo those from research conducted by one of us (Justin Wolfers) jointly with Stanford University law professor John Donohue. That research replicated and probed the leading studies, finding that even minor changes in how the analyses were conducted dramatically altered the conclusions. As a result, there’s “not just ‘reasonable doubt’ about whether there is any deterrent effect of the death penalty, but profound uncertainty,” the authors wrote. Indeed, “we remain unsure even of whether” the effects “are positive or negative.” {…}

As big a deal as capital punishment may seem, it’s actually quite rare. Since the death penalty was reinstated in the U.S. in 1976, there have been about 670,000 homicides and only 1,296 executions, a rate of about one execution per 500 murders. This makes the task of discerning its specific impact very difficult.

To complicate things further, the homicide rate fluctuates enormously for reasons unrelated to capital punishment. So the correlation between capital punishment and homicide rates can be positive or negative, depending on the specific sample of states or countries analyzed, the sample period chosen, and which other determinants are accounted for.

Even if the correlation between capital punishment and murder rates could be reliably estimated, that wouldn’t be enough to prove causation. For instance, more vigorous capital punishment probably occurs at the same time as other reforms to sentencing, prisons and policing. Unless these variables are measured accurately — and our existing criminal-justice statistics do not provide adequate measures — it is impossible to disentangle which reforms are driving the homicide rate.

It’s not even clear how to determine whether a state has an active death penalty. Is Connecticut’s recent decision to eliminate its death penalty consequential, given that the state executed only one person in the past 50 years? California has issued 951 death sentences since 1976, but executed only 13 prisoners, suggesting that the courts have slowed down the system enough to effectively transform a nominal death sentence into life without parole.

Finally, we have no evidence at all on how would-be murderers perceive the risk of execution if they are caught, which is what really matters for deterrence.

Taken together, the various problems of measuring the relationship between crime and punishment yield what the National Academy panel calls “model uncertainty.” In English, that means there are many seemingly plausible ways of looking at the evidence that yield dramatically different answers. The true effect could be big or small, positive or negative. We just can’t estimate it with any certainty. {…}

Even if one accepts the possibility that the threat of death deters some would-be murderers, that doesn’t mean it’s the best way to do so. Capital punishment diverts hundreds of millions of dollars from other criminal-justice interventions that may have done more to reduce homicide rates. This important point — there’s an opportunity cost to spending on capital punishment — often gets overlooked.

Amid all the uncertainty, the data do allow one conclusion that the National Academy should have emphasized more strongly: The death penalty isn’t the dominant factor driving the fluctuations in the U.S. homicide rate. If it were, the homicide rate in the U.S. wouldn’t have moved in lockstep with that of Canada, even as the two countries experimented with different death-penalty regimes (see chart). Likewise, homicide rates tend to rise and fall roughly in unison across states, even as some – - such as Texas – ramp up executions, and others have chosen not to adopt the practice (see chart).

Overall, the panel’s conclusions are a welcome corrective to a debate in which politically expedient, yet imperfect, findings have attracted greater attention than those rare moments of humility when we social scientists admit what we don’t know. Now that a widely respected authority has established the uncertainty about the deterrent effects of the death penalty, it’s time for advocates on both sides to recognize that their beliefs are the product of faith, not data.

The charts referenced in the article are above.

Image via Bloomberg


Shameless Self-Promotion Alert

Can’t get enough of us here at Spatial Orientation? Of course you can’t! Your humble spatial cadets will now be generating content for the fantastic, up and coming web-based newspaper, the Independent Voter Network. Big thanks to Wes Messamore (whose awesome work you can follow here and here) for bringing us on board. You can follow my archive here and Craig’s here. And just to wet your beak a little, here’s my first article that went up earlier today. Enjoy, and as always, thanks for reading!

Florida holds the dubious honor of wrongfully convicting the largest number of innocent people put on death row. Since 1973, the Sunshine State wrongfully incarcerated and released twenty-three people set for a state sanctioned killing. And nationwide, 140 people in twenty-six states have been exonerated of the crimes for which they were convicted and sent to death row. If this tells independent voters anything, it’s that the criminal justice system is in desperate need of reform, with capital punishment leading the way.

It would seem that miscarriages of justice of such a magnitude would lead Florida policy makers and political leaders to take measures to ensure that number declines. Despite this grisly scenario, Florida Republican Governor Rick Scott recently eliminated the funding necessary to keep the Florida Innocence Commission alive. Created by the Florida Supreme Court, the commission is tasked with advocating for reforms after examining wrongful convictions by “studying false eyewitness identifications, interrogation techniques, false confessions, the use of informants, the handling of forensic evidence, attorney competence and conduct, the processing of cases and the administration of the death penalty.”

But with one stroke of the pen, Scott nixed the Commission by vetoing the funds the legislature appropriated for it – which last year stood at $200,000, a drop in the bucket for a state with a 2013 budget of about $70 billion. This isn’t the first time Scott meddled with attempts at reforming Florida’s criminal justice system. Earlier this year he vetoed a nearly unanimous piece of legislation (combined House and Senate vote 152-4 in favor) that would move non-violent drug offenders out of prison and into treatment programs after completing half of their sentence.

While Florida moves in reverse on remedying these problems, New York, Connecticut, New Jersey, New Mexico, and Illinois all eliminated the death penalty in the last five years, with Californians deciding this fall. This is no doubt a response to the alarming trend of those wrongfully convicted and sent to death row, only to be later exonerated. Moreover, the recent high profile cases of Corey Maye, who was released from death row after ten years, and Cameron Todd Willingham, a likely innocent man executed in 2004 in Texas, shed further light on the manifest need to eliminate capital punishment and alter the way we think about criminal justice.

As 18th century legal philosopher Cesare Beccaria put it in his renowned treatise, On Crimes and Punishments:

“The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or necessity of war, have taught men to shed the blood of their fellow creatures, the laws which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible, as this punishment is usually attended with formal pageantry. Is it not absurd, that the laws, which detect and punish homicide, should, in order to prevent murder, publicly commit murder themselves?”

If there is one thing that people of all political persuasions and philosophies can agree on it should be this: the greatest and most serious deprivation of liberty that the government can engage in is killing its own citizens. If the government attempts to use this deprivation, it should be judged only by the strictest scrutiny and standards. There is no recourse for the wrongfully executed. If the death penalty is going to be used to carry out state sanctioned killings, shouldn’t we atleast know whether the individual in question is actually guilty of the crime they are accused of committing?

Although Gov. Scott says the goal of his budget is to “reduce the size of government,” which I’m all for (even more so than Scott), maybe someone should tell him that the criminal justice system is part of the government. Trials, prosecutors, appeals, prisons, and prison guards all cost the taxpayers of Florida money, while more wrongful convictions mean more prisoners – leading to more prisons and corrections personnel, thereby increasing the size of government. In the final analysis, the scope of government cannot get any more intrusive than a seemingly uncritical belief in a process that gives the state the solemn power to extinguish the lives of its citizens – especially when accompanied by the elimination of a key mechanism for redress the wrongfully convicted once possessed against such an awesome power.

Image via Independent Voter Network

Oregon Governor Places Moratorium on Capital Punishment

In a move that will certainly be welcomed by civil libertarians, those inherently skeptical of government power, and criminal justice reformers, Oregon Governor John Kitzhaber has officially placed a moratorium on all executions, issued a temporary reprieve stopping the Dec. 6 execution of Gary Haugen and urged Oregonians to “find a better solution” to a system that he said is arbitrary, expensive and “fails to meet basic standards of justice.”

Oregon Live reports that Gov. Kitzhaber has always been opposed to capital punishment but “chose to swallow his well-known revulsion to the death penalty and enact what he believed to be the will of the people, allowing the 1996 execution of Douglas F. Wright and the 1997 execution of Harry C. Moore to take place.” But as another inmate was set for execution in just two weeks time, Kitzhaber’s personal beliefs and disgust with the state’s death penalty system was too much this time, saying, “[i]n my mind, it is a perversion of justice…. I refuse to be a part of this compromised and inequitable system any longer and I will not allow further executions while I am governor.”

The current death penalty law in Oregon is quite odd, as the state will only execute inmates who have voluntarily waived their legal right to appeal. Nonetheless, Kitzhaber finds the current system broken beyond repair and a mockery of the concept of swift and certain justice. He favors life sentences without the possibility of parole since the current system is “far more expensive…because most death row inmates fight their sentences in expensive and prolonged legal challenges.”

In a released statement, Kitzhaber elaborated on his reasoning for implementing the moratorium:

Oregonians have a fundamental belief in fairness and justice — in swift and certain justice.  The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain.  It is not applied equally to all.  It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury.  The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer. The hard truth is that in the 27 years since Oregonians reinstated the death penalty, it has only been carried out on two volunteers who waived their rights to appeal.

[…]

And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone.  Over time, those options are narrowing.   Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases.  Consider that it was only six years ago that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18.  For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.

It is time for Oregon to consider a different approach.  I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor.

Whether the moratorium will last is another question entirely. Oregon has, what you might call a complicated history with the death penalty. It was first statutorily enacted in 1864 and abolished and reinstated multiple times since. Kitzhaber said he wasn’t sure if the people of Oregon support repealing capital punishment, but death penalty activists lobbied the Governor to institute the moratorium until the state can thoroughly review its death penalty procedures.

Even though it’s possible the moratorium may be lifted based on Oregon’s past fickleness when it comes to the death penalty, it’s hard to see this decision by Governor Kitzhaber as anything but good news. Capital punishment is flawed public policy, and it’s nice to see an elected official speaking out against it so eloquently. I’ve previously written about the death penalty here and here.

h/t Sentencing Law and Policy

Image via New York Times

Lazy Sunday Links

Public Opinion Regarding the Death Penalty

First off, I found this chart – via a new paper by Andrew Gelman and Kenny Shirley – showing levels of support for capital punishment based on race and sex extremely fascinating. The starkest finding is the clear difference in support for capital punishment between blacks and whites. What to make of this huge gap? Over at Big Think, Will Wilkinson points out exactly what I think explains this large discrepancy:

Perhaps this is not surprising, as blacks have been and remain much more likely than whites to be executed. But blacks are also more likely to be murdered than whites. If the death penalty is a deterrent, as is often alleged, it ought to benefit blacks more than whites. In any case, if there is a deterrent effect, black Americans are not too impressed. Strong black opposition to the death penalty likely reflects more than just the fact that blacks are more likely than whites to be executed, but also a widespread sense among blacks, often backed by personal experience, that they are more likely to be ill-treated by the criminal justice system generally.

On a related note, there are a couple of recently released polls regarding public support for the death penalty. One poll from CNN shows support for capital punishment at 48%, while Gallup has a poll showing support at 61%. Despite a thirteen-point difference in both poll results, either number represents a 39 year low for support of the death penalty. However, despite the fact that these results show the American people favoring the death penalty at low levels not seen since the 1970’s, both numbers still remain far too high. Perhaps the drop in support has to do with the recent execution of Troy Davis, and the myriad questions surrounding his prosecution and witnesses recanting their testimony.

Regardless, the main takeaway from both polls is the steady decline of public opinion favoring the death penalty. In just under ten years, support for capital punishment in the Gallup poll fell from 70% to 61%, while in the past seven years, the CNN poll shows support dropping from 56% to 48%.

h/t ACLU

Image via Andrew Gelman

Explaining Public Support for the Death Penalty

Over at The Huffington Post, Radley Balko looks at why Americans still support the death penalty and breaks down the support into three categories.

I. Vengeance

Most Americans support the death penalty out of a desire for vengeance or retribution. Some crimes, the thinking goes, are so heinous that death is the only appropriate punishment. According to Gallup, about 60 percent of death penalty supporters back capital punishment under some form of this reasoning. It’s probably also the strongest argument in favor of the death penalty.

But the hunger for vengeance or retribution can also cloud judgment.

[...]

Particularly heinous crimes often bring more pressure on police to arrest a suspect, and on prosecutors to secure a conviction. ProPublica recently published a lengthy investigation showing that the deaths of children in particular can cause law enforcement officials to fixate on a suspect, overlook evidence that contradicts their theories, and even find crimes where none may have been committed (charging accidental deaths as homicides, for example).

[...]

There are of course plenty of cases where there’s both a heinous crime and irrefutable evidence of guilt. But there have been a plenty of others where a defendant’s guilt at one point seemed certain and the state’s case later unraveled. There is honest disagreement over what role retribution should play in the criminal justice system. But it’s important to bear in mind that the desire for retributive justice can easily (and often does) bleed into vengeance. We want the criminal justice system to seek truth by way of reason, evidence, fairness, and good judgment. Vengeance doesn’t sit well with any of those values.

II. DNA Testing

Yet the scientific certainty DNA testing offers, in contrast to most other forensic specialties, also seems to have reassured the public that we’re now more likely making the right calls. According to Gallup, in 2003, 73 percent of Americans said an innocent person had probably been executed in the previous five years. That number dropped to 59 percent in 2009. In his concurring opinion in Marsh, Justice Scalia also wrote that an exoneration “demonstrates not the failure of the system but its success.”

The problem with that logic is that while DNA testing has exposed problems with the criminal justice system, the set of cases for which DNA testing is dispositive of guilt is actually quite small. It mostly compromises rapes and some murders (usually murders that also involve a rape). But it’s safe to assume that the flaws DNA technology has exposed persist outside this small percentage of cases and likely at about the same rates. For the people wrongly convicted in that larger pool of cases, there will never be any test to definitively establish their innocence. But it would be naive to think those people don’t exist.

III. Sanitizing Executions

America has come a long way since public hangings. Executions today are carried out in front of just a few witnesses. Nearly all are now done by lethal injection, often carried out by doctors. They more resemble a medical procedure, which conjures thoughts of healing, not of ending the life of an otherwise healthy person. Part of the continuing public support for the death penalty may lie in this way the government has sanitized executions to insulate the public from contemplating what’s actually taking place.

There’s a common perception that most states have settled on the lethal injection because it’s the least painful form of execution, or at least the most humane. But the procedure’s popularity may lie more in how it protects witnesses and the public from discomfort (and thus, preserve general support for the death penalty) than protecting the condemned from excessive suffering.

[...]

But the idea of bringing back firing squads or the guillotine would make most Americans cringe — even ardent death penalty supporters. That we’d recoil from the idea suggests that we’re gauging the humaneness of state executions not by the swiftness and painlessness they provide for the condemned, but by the amount of discomfort they arouse in the rest of us. We prefer the method of execution least likely to remind us that it’s actually an execution. And that suggests that we may not be as comfortable with executions as we think.

Executions themselves are also highly ritualized. State execution protocols tend to be specific, regimenting blocks of time for visitation with family, contemplation and spiritual guidance. In most states, the condemned is offered a last meal. In some states, the prisoner is showered and shaved. In California, he’s given a new uniform just for his execution. Ohio’s execution protocols run hundreds of pages long, and call for meticulous logs of the prisoner’s final hours, sometimes down to the second.

These rituals benefit the people carrying out the execution, giving them some detachment from what has to be a daunting and emotionally wrenching task. A checklist of procedures could provide some insulation from the moral weight of taking a life.

But these rituals also give the impression that such fidelity to procedure was present throughout the process, and too often that isn’t the case. Adhering to protocols like ensuring the specified number of guards walk the condemned man from his cell to the death chamber, that his last meal is delivered promptly at 6 p.m., or that he’s clean-shaven for his execution seem farcical when states have tried to execute a man whose court-appointed attorney slept through the trial, or whose prosecutor and judge didn’t disclose that they’d had an affair, or whose DNA was not compared to that found at the crime scene. In countless cases, prosecutors have withheld exculpatory evidence.

Image via flickr user scpr.kpcc

Must Be Guilty!

Kill Capital Punishment

The Troy Davis execution is really bringing this issue to the forefront of the national conversation. Jason Brennan of the Bleeding Heart Libertarians just about sums it up:

Even if we grant for the sake of argument that some people deserve to die, it does not follow that the state may be authorized to kill them. For a state to have the right to kill criminals, it must make decisions about guilt and hear appeals in a fair, competent, and reliable manner. It must have rules that reliably let the innocent–or those whose guilt is reasonably in doubt–go free. The American criminal justice system fails to meet these standards. Perhaps a government of smart angels should be granted the right to kill. We could debate that. But no state in America deserves any such right.

Rick Perry is also doing his part to keep this issue relevant, as Radley Balko highlights his hypocrisy and that of the “pro-life” party:

They enthusiastically applaud government executions. And they’re certain government is incompetent, except when it comes to bombing foreigners, torturing Muslims, and killing guilty people, in which cases government is always, 100 percent, how-dare-you-even-ask-questions correct.

Just Say No to Capital Punishment

Here is a letter to the New York Times:

Responding to Ohio’s month-long postponement of its next execution after a judicial finding of constant departures from proper execution procedures, the Times editorial rightly concludes that the death penalty ‘cannot be operated responsibly anywhere,’ and justly calls ‘for every state with the penalty on the books to outlaw this barbaric punishment’ (Ohio and the Death Penalty, August 7).

The capital punishment system is rife with failure.  In addition to procedural problems with its implementation, it does not deter violent crime, and far exceeds the cost of imposing life sentences. But most importantly, those charged with implementing the death penalty – prosecutors, jurors, and state officials – are not omniscient actors, immune from inescapable human fallacies.  Undoubtedly, the death penalty claimed innocent lives in the past and will surely do so in the future, proving the Times absolutely right to call for its abolishment.

Sincerely,
Brad R. Schlesinger

 

>Instead of the death penalty, how about a life sentence

>My letter to the editor on capital punishment was published in today’s Sun-Sentinel.

More on the death penalty

 

Expanding on some of the themes hit in my letter to the Sun-Sentinel, E.G., over at the Democracy in America blog at The Economist, takes a look at the political calculus on capital punishment. I encourage everyone to check it out. The main takeaway:

 

There can’t be any greater miscarriage of justice than the execution of an innocent person. That prospect is so awful that it’s worth dismantling the entire system in order to preclude it. If nothing else, you would think that capital-punishment supporters would be reluctant to give their opponents the ammunition. But the problem may be precisely that these cases aren’t sufficient ammunition for the opposition. This might be an issue where people need to get their own thoughts straight before they have any chance of pushing politicians to a more temperate perspective.

>No integrity in the death penalty

>Here is a letter to the Sun-Sentinel:

The June 28th editorial, Bolster integrity of death penalty process to maintain support, fails to understand that there is no integrity in capital punishment – the level of oversight from the Florida Commission on Capital Cases notwithstanding.
 
Not only does the death penalty fail to serve as a deterrent to violent crime, but the cost of executing prisoners far exceeds the cost of imposing life sentences. More importantly, those charged with implementing the death penalty – prosecutors, jurors, and commission members – are not omniscient beings, but people subject to the same fallacies as the rest of us.
 
Undoubtedly, the death penalty claimed innocent lives in the past and will surely do so in the future, regardless of whatever integrity is brought to the process. Does Florida want to claim the dubious mantle of the next state to execute an innocent person? Rather than continuing to give the state the power to kill its own citizens, let’s save some money, and lock ’em up for life.

Sincerely,
Brad R. Schlesinger
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