16 Days for Life 2018: Ending GBV and Championing SRHR
The 2018 campaign aims to end gender-based violence by advocating for comprehensive Sexual and Reproductive Health and Rights (SRHR) across Southern Africa. The initiative coincides with global movements like #MeToo and #TimesUp, emphasizing the importance of #VoiceandChoice for all. Through virtual discussions, local engagements, and economic empowerment strategies, the campaign seeks to create a lasting impact beyond the designated 16 days.
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Deadly Justice, Ch 15-16 Deterrence, then Declining Use March 9, 2022 Baumgartner, POLI 203, Spring 2022 1
Some announcements first Kristine Bunch s email: kristine@justis4justus.org All the addresses for the individuals who have called in from Central Prison are on the class website, toward the bottom. You can write them a letter through the USPS. This from Mark Katz, quoting Alim about his reaction to speaking to our class: I can t believe I just talked to 360 people in an auditorium. Mind-blowing! I m like you gotta be kidding! 360 people showed up to hear something I had to say? And I rapped for them and got a thunderous applause. This is truly the stuff of dreams. 360 people listening to me? Alhamdulillah. Allah has been so merciful to me and I thank you for providing me with these opportunities. My Mom and Jeannie are so proud. Hell I m proud of this one. 360 people! I never imagined it. Baumgartner, POLI 203, Spring 2022 2
More announcements I m teaching two classes next semester: POLI 421, Framing Public Policies, M, W 125-240pm This class is about argumentation and how public policies are justified or attacked. It is specifically not focused on criminal justice, though it does use examples of frames from many public policies including tobacco, LGBTQ+ rights, women s equality, race-related frames. It starts with some psychological theories of human cognition, then applies these to politics and public policy. It s not about campaigns and elections, but about public policies. Baumgartner, POLI 203, Spring 2022 3
More announcements POLI 490 Advanced Research in Criminal Justice, MW 335-450pm I have not written the syllabus yet, but I think I ll teach this class about driving while black traffic stops and racial disparities associated with those. The key thing in this class will be a major research project, based on your own original research. Probably we ll do readings from the literature for about the first half or two- thirds of the class, then it will turn into a seminar about your research projects. Both classes are limited to 35 students. Anyone who takes both gets a candy bar! Baumgartner, POLI 203, Spring 2022 4
Deterrence How it was used in Furman and Gregg Evidence and studies Where we stand today on deterrence Public opinion on deterrence Baumgartner, POLI 203, Spring 2022 5
Furman v. Gregg Furman: The lack of deterrent value was laid out as a reason to abolish It can t deter if it is used extremely rarely on a randomly selected handful But in 1975, in the midst of a rise in crime, Isaac Ehrlich published a study in the American Economic Review Price theory raise the price, demand goes down Here: the object being purchased is murder. Raise the price of murder, demand goes down. Homicides from 1933 through 1969 Clearance rate: 89 percent Percent of those charged who are convicted: 43 percent Executions as a percent of previous year s convictions: 3 percent Controls: labor force participation, unemployment, number of young men in the population, income, time trend, percent nonwhite in the population, population size, government spending, police spending. (Think about this study ) Result: 7 or 8 homicides prevented, BUT, significant only at the 90 percent level, caveats Take-home for the press / advocacy world: Each execution saves 8 lives!!! Baumgartner, POLI 203, Spring 2022 6
Controversies Social scientists argued back and forth about this. Ehrlich s study was cited by the US Solicitor General (Robert Bork) in his argument before the USSC in Gregg v. Georgia. Do we have a moral requirement to execute those who kill? According to Ehrlich, each death sentence prevents 8 future homicides Problem is in evaluating the evidence. Note: Ehrlich s study was death v. no punishment at all, not death v. LWOP. Baumgartner, POLI 203, Spring 2022 7
Model Uncertainty and the Deterrent Effect of Capital Punishment (2008) All previous estimates from the literature on how many lives are saved by one execution Note: it looks just like a random bell curve. Note: it has a huge variability. Note: Lots of estimates are negative: what s the morality of that? Each execution leads to more violence? Baumgartner, POLI 203, Spring 2022 8
National Academy of Sciences review NAS brought together a committee to review the issue 2002 report, then updated in 2014 Conclusion: studies on this topic are not informative The science on this question is clear: we don t know. But note that virtually none of the studies have been psychologically reasonable: from the perspective of the potential killer, do we really think they are considering this? Baumgartner, POLI 203, Spring 2022 9
Public Opinion on Deterrence People tend to believe in deterrence, or used to. Trend is sharply downward over time; see Gallup poll results: 1985, 62-32 yes. 2011, 32-64 no. People do cite deterrence as a reason to support or oppose. Retribution, deterrence often the most common pro-DP arguments Decline in belief in the deterrence value is part of the explanation for the decline in DP opinion generally LWOP, another form of the death penalty, has undercut the deterrence argument: which would deter more? 50 years in a cage, until you die of old age, or a rapid execution? Baumgartner, POLI 203, Spring 2022 10
The strange argument about deterrence The rational murderer Calculate the benefit of the crime Calculate the odds of being captured by the police x the odds of being sentenced to death x the odds of that sentence being carried out, assign values to these outcomes Compare the cost and the benefit, then act accordingly. Note most models relate to the odds of being caught at all, not being caught then subject to this v. that punishment, so they are not even good approximations of the murderer s calculation . More typical murderers Mentally deranged, either permanently or at the time of the crime Strung out on drugs or alcohol or both Completely unaware, as you were before this class started, about the odds of various punishments, given a homicide. Baumgartner, POLI 203, Spring 2022 11
Lets say deterrence was indeed a thing Police clearance rates are more important: What s the odds of getting caught in the first place Comparison should be to the next available punishment: LWOP It s not even clear that most individuals, if they thought about it, would find a death sentence worse than LWOP Also note no one ever paid attention to the issue of most death sentences being overturned, and only a few carried out. So this literature is a Big Mess, really based on some ideological wishful thinking, or just assuming that there must be deterrence, and the harsher the punishment, the more the deterrence. But it s more complicated than that. Baumgartner, POLI 203, Spring 2022 12
Declining Use (BTW, at this time in the class 2 years ago, we went remote, ugh ) Numbers in sharp decline since peak in mid-1990s Death sentences, executions, states abolishing, number of states no longer using, number of counties sentencing is lower and lower What are / could be the constitutional issues associated with that? Evolving standards of decency: we don t do this any more Equal protection of the law: it can t be just the county that determines your punishment Baumgartner, POLI 203, Spring 2022 13
Is the death penalty dying? Depends on when you look: increased from 1977 to 1998, decline since then It completely disappeared from 1935 to 1966 Baumgartner, POLI 203, Spring 2022 14
When it came back, it was fast. But some states have recently abolished. Kansas was the last to add, 1994 Since 2006, 11 abolitions Baumgartner, POLI 203, Spring 2022 15
Recent abolitions: Legal Abolitions (year) New Jersey New York New Mexico Illinois Connecticut Maryland Delaware Washington New Hampshire Colorado Virginia 2007 2007 2009 2011 2012 2013 2016 2018 2019 2020 2021 Governor-imposed Moratoria (year) Oregon Pennsylvania California (Note: these apply to executions, not death sentences) (Also note: no recent re- establishments) 2011 2015 2019 Baumgartner, POLI 203, Spring 2022 16
State legislative bills went from expanding to restricting use of the death penalty, in late 1990s Baumgartner, POLI 203, Spring 2022 17
Trends went up, up, up, then down, down, down Executions Death Sentences Baumgartner, POLI 203, Spring 2022 18
Every indicator in deep decline, on the order of 60-80 percent declines from mid-1990s Executions Death Sentences Baumgartner, POLI 203, Spring 2022 19
Evolving Standards of Decency Weems v. United States (1910): Eighth amendment is not fastened to an absolute but may acquire meaning as public opinion becomes enlightened by a humane justice Trop v. Dulles (1958): Eighth amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society Atkins v. Virginia (2002): DP not available for intellectually disabled. Roper v. Simmons (2005): DP not available for juveniles How were those considered? Let s look at Atkins and Roper Baumgartner, POLI 203, Spring 2022 20
Atkins v. Simmons (2002): No death penalty for those with intellectual disabilities (IQ < 70) But consider the relatively recent decisions in the other direction Penry v. Lynaugh (1989): ok to execute those with disabilities So what happened between 1989 and 2002? That was a pretty quick change. The Court noted several things: State legislatures changed laws on the topic, generally in the direction of restriction Scientific understanding changed General level of use declined The Court just changed the interpretation, 13 years later Baumgartner, POLI 203, Spring 2022 21
Roper v. Simmons (2005): No DP for juveniles But go to DPIC and search in the execution database, click on juvenile: we ve done it 22 times, including 13 times in the period of 1998 through 2003: https://deathpenaltyinfo.org/views-executions Thompson v. Oklahoma (1988): no one under 16 Stanford v. Kentucky (1989): ok to execute 16, 17 year olds So again, in 1989 it s ok, then in 2005 it s not: a big change in 16 years Baumgartner, POLI 203, Spring 2022 22
So, what happened so quickly? In 1989, these things were AFFIRMED; in 2002 and 2005, they were REJECTED Re-read pp. 323-324 of the book Lots of different indicia were cited by the Court: how many states allow it (trend, rather than number); how often it has been done (e.g., actual use, no matter what the law); The direction of legislative actions Direction / development of social science research on juveniles International trends, decisions from other countries many other factors cited, including the Court s own judgment Very strong reactions / rejections from the Originalists Scalia, Rehnquist, Thomas, O Connor: no consensus, in fact a majority of states allowing DP also allow it for juveniles, so no legislative / elected officials have rejected it. Evolving standards a very interesting issue, very contentious Baumgartner, POLI 203, Spring 2022 23
Would the original constitution have allowed execution of a 7 year old? Justices Stevens and Ginsberg, concurring in Roper v. Simmons: https://supreme.justia.com/cases/federal/us/543/551/concurrence.html Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court s interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. See Stanford v. Kentucky, 492 U. S. 361, 368 (1989) (describing the common law at the time of the Amendment s adoption). Baumgartner, POLI 203, Spring 2022 24
Very strong reactions from the others Justice O Connor agrees with this prohibition, but dissents anyway, based on the idea that SOME 17-year olds may deserve death: https://supreme.justia.com/cases/federal/us/543/551/dissent.html Wow was Justice Scalia unhappy with all this. And several other justices joined his dissent. He did not like: How the consensus was calculated The use of own judgment The use of international norms Many other elements of the decision: this is no way to run a legal system https://supreme.justia.com/cases/federal/us/543/551/dissent2.html Baumgartner, POLI 203, Spring 2022 25
So what can we say about evolving standards? It s clear that we no longer do many things that we once did, particularly hundreds of years ago. So this is an important part of the constitution. It s also clear that conservative Justices object to the very concept of evolution they believe in and focus on the original meaning of the constitution, at the time it was written. A wide variety of indicators are used to judge whether societal standards are changing, but some justices regard these as irrelevant. The constitution does prohibit cruel and unusual punishments: So therefore some assessment of whether a punishment is unusual versus relatively common is part of the constitution. But, no guidance on how unusual is too unusual That s why we litigate and fight through the courts to get a Supreme Court ruling! Baumgartner, POLI 203, Spring 2022 26
The Roper Extension argument Around March 28 we ll be talking about the current movement to push for an extension of the age limit of Roper, 18, to 21. Evolving standards of decency Evolving standards of neuro-science Sorry fellas but this entire argument is that the male brain is not fully developed until a later age, beyond 21. Nothing personal! Baumgartner, POLI 203, Spring 2022 27
