The numbers speak

One of the first rules of argument is that if you choose the question you control the answer. Do the American people favor the death penalty as punishment for murder? Somehwere around 60 % say yes. Do the American people favor the death penalty or life without the possibility of parole with prison earnings going to the family of the victim as punishment for murder? A majority favors LWOP plus restitution. We learn these factoids and more from the annual Gallup poll on the death penalty that I discussed last month.

I'm pointing to them again because of what Bidish Sarma posted at A Criminal Enterprise. He asked, "Do People Actually Care If the State Executes Innocent Defendants?" It's a fair question, and his disheartened answer (it seems as if they don't; most people believe we've executed an innocent person in the last five years, and most of those still favor the death penalty), drawn from that same Gallup poll, leads him toward a pessimism.

The numbers also partly rebut the Marshall Hypothesis. Former Supreme Court Justice Thurgood Marshall speculated that support for the death penalty would decline as people came to understand how the system breaks down at numerous points in the process. The Gallup poll suggests that he may have been too hopeful.

Lord knows, I'm pessimistic enough for a whole pontification of blawgers,* but in this case I'm not sure such pessimism is called for. In the long term, that is. Short term, it's something else - especially for those of us on the ground in Ohio.

So, as we come to the end of November, and as Ohio tries desperately to sharpen its hypodermic needles and get back into the killing business before Christmas, this seems a good time to step back and see just where we are.

And we have to begin, as Sarma did, with numbers. In this case, some from Ohio. But first a caveat and a disclaimer.

The caveat is that numbers are tricky things. Benjamin Disraeli is said to have said, and Mark Twain certainly did, that there are three kinds lies:

Lies, damn lies, and statistics.

The point is that the numbers can be manipulated to show whatever you want them to. I'm heading somewhere in this post, so be forewarned.

The disclaimer is that I'm not a statistician. That's a fancy way of saying that the lessons I'm drawing from the numbers are based on common sense and careful thought rather than social scientific analysis of statistical trends and databases.

We're off.

Here's the first batch of numbers.

• Ohio has killed 32 people in this post-Gregg era, starting with Wilford Berry in 1999.
• Ohio is first (We're Number One! We're Number One!) in executions among states in the north. No other state comes close.
• Ohio has killed 4 this year; tried unsuccessfully to kill a 5th; because of the failure, didn't get to kill 2 more; is desperate to kill one more.
• Ohio has 7 men with active and serious execution dates, one a month from now through June. There's every reason to think that there will be more men with more dates in the months after June unless something calls a halt.

These numbers tell of an impending bloodbath. Governor Ted claims to struggle with these cases, but he has an election to win next year and what's a few more dead bodies among politicians. Our Attorney General has pretty well indicated an enthusiasm for killing.

Here's a second set of numbers.

1996 - 10 death sentences

1997 - 8 death sentences

1998 - 12 death sentences

2005 - 6 death sentences

2006 - 4 death sentences

2007 - 5 death sentences

2008 - 3 death sentences

2009 - 1 death sentence

I may have missed a death sentence or two in the 90s because I did a quick and dirty count rather than a really careful and time consuming one. If I did, the disparity would be greater, the point would be the same. I don't think you need to be a statistician to see a pattern here. Death sentences are down. Way down.

Importantly, it's not just Ohio. Virginia hasn't had a death sentence in 20 months. Nationwide the numbers are down.

The question is why. There are probably a few explanations.

• The number of capital indictments may well be down, though I don't have ready access to the data to confirm that. In any event, the number isn't down enough to account for the drop in sentences.
• Defense counsel may be doing a better job. We can hope that the years of training have had some effect. Again, it's hard to see that making so much difference.
• LWOP. No question about that. It's made a difference. But it was starting to kick in by the 1998 numbers, and you certainly didn't see a decline then.

So maybe there's this, too. Maybe people are getting wary. It's one thing to tell the man from Gallup what you think. It's easy to say, to a guy carrying a clipboard or calling duing the dinner hour:

Sure, I believe in the death penalty. Yeah, it's unfair. Yeah, some innocent guy. But gotta do it for the victims, show we're tough. Anyway, the guy probably deserves it.

It's something else to actually impose the sentence on a real person. The concrete jury room with a live defendant outside the door calls the question in a way the abstraction of a pollster's query cannot.

I'm not suggesting that the Gallup responders who said innocents are killed but we should have a death penalty anyway are lying. I don't think they are. I'm suggesting that it makes a difference when there's a guy in the dock. Stalin said

A single death is a tragedy. A million deaths is just a statistic.

That abstract dead innocent guy can't hold a candle the possibility of a mistake with the guy in front of you.

And that brings us back to Cameron Todd Willingham. Our latest candidate for the executed innocent guy. Governor Perry has done his best (and is still doing it, though now through a proxy) to ensure that the public won't get a full and fair hearing on the question of whether Willingham was executed despite being factually innocent. There are many reasons, I imagine. But high on the list is that Perry understands that Stalin was right, and he doesn't want a tragedy.

So maybe the Marshall Hypothesis is right after all. Maybe it doesn't show up in the general polling data but only in the polls that count - the one in the jury room.

If that's right, we could be seeing the beginning of the end of the death penalty in practice. That won't help the guys on the row. It won't do Ken Biros any good as he fights to see Christmas. But it's something.
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*My contribution to what James Lipton calls "the venereal game" in his wonderful book, An Exaltation of Larks. And see Schott's Vocab Weekend Competition: A Murder of Crow(d)s.