A Criminal Enterprise

Deterrence and the Death Penalty

Posted in News by Sophie Cull on January 18, 2011

Outgoing Governor of Pennsylvania, Edward Rendell, wrote a letter to the state General Assembly in his final days as governor, questioning the effectiveness of the death penalty. He wrote,

“As a former District Attorney and as a death penalty supporter, I believe the death penalty can be a deterrent – but only when it is carried out relatively expeditiously.”

Dissatisfied by the delays in actual executions caused by the appeals process, the Governor called on legislators to decide if the process could be sped up or otherwise, called them to consider repeal.

There is no doubt that Rendell is a death penalty supporter: he signed six execution warrants on the same day that he issued this letter – bringing the total number of execution warrants to 119 during his term as governor.

Rendell subscribes to Beccaria’s well-accepted theory that deterrence will only be achieved through punishment that swiftly follow on the heels of the crime. His frustration with capital punishment is rooted in his belief that it can deter future crimes – if only the process didn’t take so long.

Last week, the Illinois legislature voted to repeal the death penalty. Some opponents of the bill spoke about the need for capital punishment to protect prison guards and deter murderers serving life from killing inside the prison walls. Others spoke of general deterrence, claiming that without the death penalty, there would be a higher murder rate in the state of Illinois. That will remain to be seen if the Governor signs the bill.

Regardless of whether the death penalty does deter would-be murderers (and we can probably all agree that pursuing a conclusive answer to this question seems much like chasing the white rabbit), the question we should ask is: what weight should we give deterrence in deciding whether or not we want the death penalty?

It seems to me that deterrence is a secondary reason to have the death penalty which is only compelling in conjunction with a primary reason. If we believe that the death penalty is a just, retributive punishment for the taking of a life, then deterrence would provide a further reason for carrying that punishment out.

But deterrence alone should not be a satisfactory reason for our society to ask for the death penalty. We may deter a child from disobeying us by striking her across the cheek, but just because our technique is effective, it does not make it right. You may disagree, thinking “The death penalty is absolutely necessary if it means we will stop future homicides.” But that is to assume it is the only way to prevent future homicides, as though there are no alternative measures we might take. I believe that way of thinking undersells our potential to create positive change in our communities. In Louisiana, for instance, perhaps the money that is spent potentially preventing homicides by putting people on death row could be funneled into education, healthcare and infrastructure to try and turn around Louisiana’s ranking as the 2nd worse state in the U.S. to raise a child. It is not a coincidence that the vast majority of death row inmates in Louisiana grew up in poverty and dropped out of school. While the link between the death penalty and the homicide rate is inconclusive, there is no question that education and poverty plays a key role in the prevalence of violent crime.

Therefore, I submit that we should not simply ask “is the death penalty deterring crime?” as Governor Rendell urged his legislature to do; we should ask “is the death penalty the most effective way to deter crime?”

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Louisiana Executes Gerald Bordelon

Posted in Cases, News by Bidish J. Sarma on January 8, 2010

The State of Louisiana took Gerald Bordelon’s life yesterday.  Mr. Bordelon volunteered for execution.  After a jury convicted him of first-degree murder at the guilt phase of his capital murder trial, he asked his trial attorneys not to present any mitigating circumstances at the penalty phase – the phase where the jury had to decide whether the convicted murderer would be executed, or would serve a life-without-parole sentence.  After the jury sentenced him to death by execution, Mr. Bordelon waived his right to challenge that sentence in front of the Louisiana Supreme Court.  The Louisiana Supreme Court nonetheless issued an opinion in his case that ultimately dismissed the appeal.  The Court indicated that it was legally obligated to decide whether Bordelon was competent to waive his appeals and also to determine if his sentence was proportionate.  In October, the Court cleared the path for today’s execution, and ruled that Mr. Bordelon is competent to waive his rights to an appeal, and that the death sentence in this case is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Generally, it isn’t uncommon for death-sentenced defendants to “volunteer” for execution by waiving their appeals.  According to the NAACP Legal Defense Fund, roughly 12% of defendants waive appellate review.  Yet, Bordelon was the first person to successfully volunteer in Louisiana since the death penalty was reinstated here in 1976.  And, while every case in which someone “volunteers” presents complex legal, ethical, moral, and philosophical questions, Gerald Bordelon’s case is worth thinking about carefully.

From my perspective, Mr. Bordelon’s execution is unsettling because it was not the product of an adversarial process, and the American legal system requires that final adjudicated judgments be informed by the zealous advocacy of lawyers in adversarial positions.  Instead, Mr. Bordelon’s death was the result of multiple, compounded perversions of our criminal justice system.   

First, the jury that sentenced Mr. Bordelon to death did not hear any mitigating circumstances.  According to the Louisiana Supreme Court, “[t]he penalty phase . . . began with a waiver by defendant of his right to present mitigating evidence . . . .”  Without mitigating evidence, the jurors had incomplete information about the person the State implored them to condemn.  Not everyone who commits a first-degree murder should be executed.  Indeed, the United States Supreme Court has held that some individuals cannot be constitutionally executed.  Mitigating evidence must be presented in order for the jury to make an accurate assessment of whether this particular defendant deserves the harshest penalty available.  Was Bordelon mentally ill?  Did he suffer abuse throughout his childhood?  Would he be able to live peacefully in a controlled environment?  Did he feel remorse for the crime?  These and other critical questions were left unanswered at trial.  The penalty phase did not pit two opposing parties against each other in the way we all learn how American trials are supposed to unfold.  The jurors sat and watched, as the State’s lawyers were not challenged when they asked the jury to order Bordelon’s execution.  Not surprisingly, the jury returned a death sentence.

Second, the Louisiana Supreme Court found that the defendant was competent to waive his appeals even though no party took the position that he may not be competent.  To determine competence, the Louisiana Supreme Court remanded the case and asked a sanity commission to make a finding upon which the Court could later rely.  The Court made the work of this sanity commission sound grave: “When a defendant asserts that he is eligible for execution because he has terminated all further legal proceedings, the consequences of an erroneous determination of his competency to make that decision are so severe that the record of the proceedings conducted on the sanity commission’s findings must show by clear and convincing evidence that he has the capacity to make a knowing, intelligent, and voluntary waiver of his right to appellate review of his capital conviction and sentence of death.”  What the Court did not say is that these commissions do not typically produce conclusions in a non-adversarial setting.  When neither party provided reasons to question the inmate’s competence, the work of the commission was basically done before it even really began.  I don’t suggest here that Mr. Bordelon was not competent to waive his appeals (although the Supreme Court made the competency standard sound a whole lot more difficult to meet than it really is), but point out that the entire process by which this execution was approved does not comport with our system’s purported notion of justice.

Third, the Court’s comparative proportionality review is far from meaningful.  In the Bordelon opinion, the Louisiana Supreme Court insisted that it had an independent duty to conduct its “Rule 28 Review” of the death sentence “to determine . . . whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”  As we’ve established here, the Court has not conducted a serious proportionality review in roughly three decades.  And, the way that Louisiana Supreme Court Rule 28 is written and the way that records are kept in Louisiana, the Court simply cannot make an effective comparative proportionality review without the full adversarial participation of both parties.  In Bordelon, the Court yet again: only truly evaluated cases that resulted in death sentences (and not those that came back with life-or-less sentences); cherry-picked death sentences from other jurisdictions without looking at the life-or-less cases from those jurisdictions; and failed to look into the mitigating circumstances present or absent in those other capital cases.  It is unclear whether the Court enforced the Rule 28 command that “[d]efense counsel shall file a [sentence review] memorandum on behalf of the defendant . . . .”  Moreover, the Court never identified or reviewed any mitigating circumstances because none were presented at trial.  How could the Court meaningfully compare “considering both the crime and the defendant” when it had utterly incomplete mitigating information about the defendant in this case?  Perhaps an intellectually honest and rigorous proportionality review would have revealed that Mr. Bordelon’s sentence was proportionate.  However, the breakdown of the adversarial process and the Court’s unwillingness to look beyond what was presented to it made a meaningful proportionality review impossible.

One could certainly argue that Mr. Bordelon was rightly allowed to waive his appeals.  And, maybe that’s true.  Even if the system functioned the way it was designed to in this case, Gerald Bordelon may still have been executed today (in accordance with his wishes).  However, the system did not work in the manner intended, and that is what troubles me.  The judges and lawyers involved ignored fundamental legal principles to facilitate the result that all interested parties apparently wanted in the end.  When we sacrifice principle for expediency, we undermine the very institutions which stand upon those principles.  Once again, the death penalty proves to be arbitrary and unprincipled above all else.