The Tortured Statistical Debate Over the Death Penalty

A productive policy conversation after a botched Oklahoma execution depends on rigorously supported claims. Those can be tough to come by.
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The botched execution of Clayton Lockett in Oklahoma a few weeks ago has prompted a new round of debate over the value and morality of capital punishment, and this is a very good thing. Candid talk about the death penalty does two important things. It provides the ignorant with the opportunity to discover facts they had not before considered. And it entices the learned to think anew, and aloud, about old patterns and practices.

In this second category, for example, my colleague Ta-Nehisi Coates chimed in recently to remind everyone of one immutable truth about capital punishment: "In America, the history of the criminal justice—and the death penalty—is utterly inseparable from white supremacy." Combine that with prosecutorial misconduct, and a meaningless right to counsel, and cowardly trial judges, and empty appellate review, you get the death-penalty regime we have. 

Along this higher plane, away from the prejudice and bigotry and zeal over the torture of another human being, the conversation I am following most closely in the wake of Lockett's grim death is between Radley Balko at The Washington Post and John Lott, the academic who founded the right-wing Crime Prevention Research Center. It's instructive not just for what it says about America's capital punishment structure but for what it says about science and statistics as well.

The debate started two weeks ago, on May 1, right after Lockett, a convicted murderer, was tortured to death by Oklahoma officials. Matt Lewis wrote a reasonable piece at The Week laying out "The conservative case for capital punishment." He wrote: "I believe in second chances. I believe in reform and rehabilitation. But I also believe in evil."

Balko responded to Lewis's piece with a case for "Why conservatives should oppose the death penalty," in which he argued that conservative skepticism of government authority and competence—like the inability to execute someone in a manner that isn't torture—should never be more intense than in the context of capital punishment, when life is on the line.

I am a fan of both Lewis and Balko and I found the exchange smart, even refreshing. Lewis is right that there could be a role for the justice system's ultimate punishment. And Balko is right to point out that capital punishment in America today is meted out arbitrarily, and capriciously, often after dubious trials and appellate procedures, bad lawyering, and poor judging. 

Here is where Lott enters the story. Last week, at National Review, he wrote: "There is overwhelming evidence that the death penalty deters murder and saves lives. Combine that with the fact that errors, few to begin with, are becoming ever less common, and objections to the death penalty are basically eviscerated."

I recoiled, not just because I don't believe for a second that there is "overwhelming evidence that the death penalty deters murder and saves lives" but also because I have spent the past five years chronicling the many ways in which legal and factual errors, along with intentional misconduct on the part of public officials, pervade death-penalty regimes around the nation.

Balko must have had the same reaction, because he responded a few days later. His piece is vintage Balko, a blend of sense and sensibility, and at its core is this line: "It’s when Lott starts citing statistics that his piece begins to fall apart." Balko asserted that Lott applied a "facile" way of interpreting statistics about the racial component behind capital punishment and that Lott unjustifiably downplayed the significance of exonerations in capital cases.

That, in turn, must have made Lott recoil. On Tuesday, Lott responded to Balko's column, reiterating at the end of his piece an old argument he has made many times before: "Most peer-reviewed studies by economists, as I show in my book Freedomnomics, find that each execution saves roughly 15 to 18 potential murder victims."

Following this conversation day-to-day, with its array of statistics and facts and studies and evidence, made my head spin. The debate can be boiled down, I think, to two primary components: 1) the racial disparity in capital punishment, and 2) the deterrent effect of the death penalty relative to the error rate of executing innocent people.

For help understanding (and answering) these questions, I asked John H. Blume, a professor at Cornell Law School who directs the school's respected Death Penalty Project. In essence, I asked who was right and why. Here's Blume's response:

Every credible study has found a statistically significant race of victim effect (i.e., more death sentences are imposed in white victim cases), and the effect is most pronounced in black defendant/white victim cases. I have written about this, as have many others, but the effect is real, and it does not disappear when other factors are variables are taken into account.  

[Lott] is right about whites being sentenced to death at a higher rate in the aggregate than African-Americans but this is a result of the same phenomena. Whites overwhelmingly kill whites, and black overwhelmingly kill blacks. So, since the overall death sentencing rate is higher in white victim cases, more death sentences in the aggregate will be imposed on white defendants.

But, the most death sentences (again the effect is statistically significant) is found in white victim/black defendant cases, and this effect is most pronounced in the Southern states that were part of the Old Confederacy (but is present in all states that retain the death penalty).

Blume also debunked Lott's claim about the deterrent effect:

As for the claim that each execution saves 15-18 potential murder victims, it is, as my recently deceased colleague and the grandfather of empirical legal studies Ted Eisenberg said after reading it, “preposterous.” There have been numerous studies over decades attempting to establish whether there is (or is not) any deterrent effect from sentencing persons to death and executing persons sentenced to death. 

No reliable study by credible researchers has ever found any deterrent effect. And the idea that you could pinpoint a relatively precise number of persons whose lives were saved by an individual execution is sophistry of the highest order.

Both Balko and Lott cited the work of Samuel Gross, a professor at the University of Michigan Law School, who just helped publish an important study estimating "that if all death-sentenced defendants remained under sentence of death indefinitely at least 4.1 percent would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States."

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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