[Senate Hearing 109-540]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-540
 
        AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                    CIVIL RIGHTS AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 1, 2006

                               __________

                          Serial No. J-109-58

                               __________

         Printed for the use of the Committee on the Judiciary
















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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

   Subcommittee on the Constitution, Civil Rights and Property Rights

                    SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania          RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    Ajit Pai, Majority Chief Counsel
               Robert F. Schiff, Democratic Chief Counsel
























                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     1
    prepared statement...........................................    54
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     3
    prepared statement...........................................    92

                               WITNESSES

Bright, Stephen B., President and Counsel, Southern Center for 
  Human Rights, Atlanta, Georgia.................................    16
Fagan, Jeffrey, Professor of Law and Public Health, Columbia 
  University, New York, New York.................................    21
McAdams, John, Professor of Political Science, Marquette 
  University, Milwaukee, Wisconsin...............................    14
Rubin, Paul H., Samuel Candler Dobbs Professor of Economics and 
  Law, Emory University, Atlanta, Georgia........................    19
Schieber, Vicki A., Chevy Chase, Maryland........................     8
Scott, Ann, Tulsa, Oklahoma......................................     5

                       SUBMISSIONS FOR THE RECORD

Bosco, Antoinette, Brookfield, Connecticut, prepared statement...    36
Bright, Stephen B., President and Counsel, Southern Center for 
  Human Rights, Atlanta, Georgia, prepared statement.............    38
Death Penalty Information Center, Richard C. Dieter, Executive 
  Director, Washington, D.C., letter.............................    58
Fagan, Jeffrey, Professor of Law and Public Health, Columbia 
  University, New York, New York, prepared statement.............    63
Goertzel, Ted, Professor of Sociology, Rutgers University, 
  Camden, New Jersey, article....................................    96
Human Rights Watch, Jennifer Daskal, Advocacy Director, U.S. 
  Program, New York, New York, prepared statement................   104
McAdams, John, Professor of Political Science, Marquette 
  University, Milwaukee, Wisconsin, prepared statement...........   108
Rubin, Paul H., Samuel Candler Dobbs Professor of Economics and 
  Law, Emory University, prepared statement......................   125
Schieber, Vicki A., Chevy Chase, Maryland, prepared statement....   134
Scott, Ann, Tulsa, Oklahoma, prepared statement..................   140
Toure, Hon. Opio, Democratic Floor Leader, Oklahoma House of 
  Representatives, Oklahoma City, Oklahoma, letter...............   146





















        AN EXAMINATION OF THE DEATH PENALTY IN THE UNITED STATES

                              ----------                              


                      WEDNESDAY, FEBRUARY 1, 2006

                              United States Senate,
Subcommittee on the Constitution, Civil Rights and Property 
                 Rights, of the Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 1:34 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sam Brownback 
(chairman of the subcommittee) presiding.
    Present: Senators Brownback and Feingold.

 OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM 
                      THE STATE OF KANSAS

    Chairman Brownback. The hearing will come to order. I want 
to thank everybody for joining us here today on an important 
and sensitive topic. We have got some excellent witnesses 
coming in front of us to testify today and I deeply appreciate 
their appearance and the difficulty that it is for them to 
appear, in some cases here because of personal emotion that is 
involved.
    The Fifth and 14th Amendments to the United States 
Constitution provide that no person may be deprived of life 
without due process of law. These provisions contemplate and 
our history reflects the adoption of the death penalty as a 
form of criminal punishment. Yet the Eighth Amendment prohibits 
in undefined terms the use of cruel and unusual punishment. 
Reading these provisions together, it seems our founding 
document neither demands nor prohibits capital punishment. 
Instead, the Constitution generally permits the people to 
decide whether and when capital punishment is appropriate.
    So each generation may, and good citizens should, consider 
anew the law and facts involving this solemn judgment. I 
believe America must establish a culture of life. That is my 
personal belief. It has been one of the guiding principles for 
me being involved in the legislative process. If use of the 
death penalty is contrary to the promotion of a culture of 
life, we need to have a national dialog and hear both sides of 
this issue. All life is sacred and our use of the death penalty 
in the American justice system must recognize this central 
truth.
    I called this hearing in order to conduct a full and fair 
examination of the death penalty in the United States. I 
believe it is important for lawmakers and the public to be 
informed about a punishment which, because it is final and 
irreversible, stirs much debate.
    Although most decisions about the death penalty rest with 
the people and their elected representatives, these decisions 
are made in the shadow of extensive Supreme Court precedents. 
For instance, in the 1973 case of Furman v. Georgia, the 
Supreme Court invalidated capital punishment nationwide by 
stating in a brief yet broad opinion that application of the 
death penalty violated the Eighth and 14th Amendments. Just 4 
years later, in Gregg v. Georgia, the Supreme Court revisited 
this judgment. The Court held that capital punishment for the 
crime of murder did not violate these constitutional 
provisions. Justice Stuart's opinion decided that the Framers 
contemplated and applied the death penalty and that it was not 
per se invalid two centuries later.
    In the past 30 years, the Supreme Court has dealt with 
numerous death penalty appeals. Just yesterday, it stayed an 
execution in Florida and permitted another to go forward in 
Texas. Occasionally, the Supreme Court has issued more wide-
ranging decisions. for example, the Court held in a 2002 case 
of Atkins v. Virginia that execution of the mentally disabled 
constituted cruel and unusual punishment. Similarly, in last 
year's case of Roper v. Simmons, the Court invalidated the 
death penalty for minors. In each of these decisions, the Court 
found what it deemed to be a popular consensus against the use 
of death penalty in cases involving mentally disabled or minor 
defendants.
    Aside from these constitutional issues, the Federal and 
State death penalty systems have inspired many policy 
arguments, such as whether the use of this punishment deters 
crime. In the Roper case, the five-Justice majority stated 
that, quote, ``the absence of evidence of deterrent effect is 
of special concern because the same characteristics that render 
juveniles less culpable than adults suggest as well that 
juveniles will be less susceptible to deterrence.'' Conversely, 
my Senate colleague, Senator Kyl, previously has introduced 
into the Committee record information suggesting that the death 
penalty may deter crime.
    It is my intention to explore in this hearing the various 
aspects of capital punishment, from the statistics on 
deterrence to the views of crime victims. It is my hope that by 
carefully reflecting on America's experience with the death 
penalty, the people can make informed judgments worthy of the 
Constitution's faith in future generations. We will hear today 
from victims and experts on both sides of this debate. I look 
forward to a robust discussion on this important issue.
    [The prepared statement of Senator Brownback appears as a 
submission for the record.]
    On our first panel, we are privileged to have two 
witnesses, Ms. Vicki Schieber and Mrs. Ann Scott. Both Vicki 
and Ann are parents who each lost their daughters to senseless 
acts of violence and who will share their stories and views on 
the death penalty. I know I speak for everyone on this panel 
when I say our hearts and our prayers go out to you and to your 
families and, above all, your children. We greatly appreciate 
your willingness to come before the Senate and share these 
tragic stories.
    On the next panel, we will take testimony from four experts 
on capital punishment. First is Professor John McAdams from 
Marquette University. Professor McAdams has written extensively 
on the death penalty and has participated in a number of forums 
on defending capital punishment.
    Next is Stephen Bright, President of the Southern Center 
for Human Rights. He has written extensively on capital 
punishment and teaches law at both Harvard and Yale.
    To discuss the effectiveness of the death penalty as a 
deterrent, we will hear from Professor Jeffrey Fagan of 
Columbia Law School and Professor Paul Rubin from Emory 
University. Professor Fagan has conducted significant research 
on the changes in homicide rates over the past few decades. 
Professor Rubin recently co-authored a study that has been 
called one of the most comprehensive death penalty studies ever 
conducted, and I want to thank them for their participation 
here today.
    I enter into this hearing seeking wisdom and seeking 
information from people that have been around this topic for a 
long period of time. This has been a long debate in the United 
States and I want to hear from people that have thought a long 
time about it and I want to hear from people that have been 
affected directly by it.
    With that, I think we will have an excellent hearing on an 
important topic.
    I want to turn to my colleague, Senator Feingold, who has 
conducted hearings on this topic in this Subcommittee before 
and has done an outstanding job on it. He has thought a great 
deal about this and I respect his opinion on that.
    Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. I thank you for 
holding this hearing. I obviously have some opening remarks I 
would like to make, but I would also like to ask that my full 
statement be placed in the record.
    Chairman Brownback. Without objection.
    Senator Feingold. Mr. Chairman, I know that our staffs have 
worked closely together on this hearing and I very much 
appreciate your commitment to exploring some of critically 
important issues related to capital punishment. I am not 
certain, but I think I may have been the last Chairman of the 
Subcommittee to hold hearings on the subject of the death 
penalty, and we have not had chairmen for some time, so I want 
to give you credit for the conversations we have had about this 
and for your following through on your idea of having this kind 
of a hearing to explore this issue. I think it is in the best 
traditions of the work we do on this Subcommittee.
    We have witnesses on both sides of the issue and I thank 
them for being here and look forward to hearing their views. As 
you know, Mr. Chairman, I oppose capital punishment, but I do 
welcome today's discussions and I hope it will help advance the 
debate on the death penalty that is going on in this country.
    In particular, I know it must be difficult for the 
witnesses on this first panel to share their highly personal 
experiences, and I, too, appreciate their willingness to 
provide their valuable and important perspectives on this 
complex issue. I would also ask, Mr. Chairman, that a written 
statement from Antoinette Bosco, another mother who suffered a 
horrible loss when her son and his wife were murdered in 1993, 
be submitted to the record.
    Chairman Brownback. Without objection.
    Senator Feingold. Mr. Chairman, across the nation, people 
are reconsidering capital punishment. Recent polls, jury 
verdicts, and actions taken by all three branches of government 
and States across the country reflect the changing attitudes 
about the death penalty in this country. With advances in DNA 
technology, numerous exonerations of people on death row, and 
new revelations that innocent people may have actually been put 
to death, more and more people are questioning the accuracy and 
the fairness of the administration of the death penalty. In my 
view, this trend is a hopeful sign as I believe there continue 
to be numerous moral, ethical, and legal problems with the 
death penalty.
    Evidence of these changing attitudes can be seen across 
America. The U.S. Conference of Catholic Bishops recently 
launched a campaign to end the use of the death penalty. In New 
York earlier this year, the State's highest court struck down 
the State's capital punishment statute, which had passed only 
10 years earlier, in 1995. And then the legislature declined to 
reinstate the law, making New York the first State to abandon 
capital punishment since 1976.
    Meanwhile, in Virginia, the death penalty was a key issue 
in the last gubernatorial election. Tim Kaine, then Lieutenant 
Governor, has long been personally opposed to the death 
penalty, although he pledged to enforce the law in Virginia. In 
the final weeks before the election, his opponent, Jerry 
Kilgore, began an ad campaign that heavily criticized Kaine's 
opposition to the death penalty, but Virginians did not take 
the bait. Despite Kilgore's attack ads, the citizens of 
Virginia elected Tim Kaine Governor.
    I think what happened in Virginia demonstrates how far we 
have come. The issue can no longer be used as a political 
grenade. The majority of Americans may not yet oppose the death 
penalty, but the electorate now understands what a serious 
issue this is and it recognizes when capital punishment is 
being exploited for political purposes.
    Much more is happening at the State level that has not 
received nearly as much attention. North Carolina and 
California recently created commissions to study the 
administration of the death penalty in their respective States, 
joining many other States that have already done so. A 
moratorium on execution remains in place in Illinois, and a 
court-ordered hold on executions in New Jersey was recently 
converted into a legislatively enacted moratorium. Others are 
under consideration in other States.
    Many State legislatures have worked to address flaws in 
their systems or even rejected efforts to reinstate the death 
penalty. State courts have limited or banned the death penalty, 
including, I am told, Mr. Chairman, the Kansas Supreme Court, 
which in 2001 ruled that the State's death penalty law was 
unconstitutional. That case, Kansas v. Marsh, was heard in the 
U.S. Supreme Court in December.
    Even in Texas, the State that executes by far the most 
people every year, a life without parole sentence was recently 
enacted, giving juries a strong alternative to the death 
penalty. And Texas Governor Perry also established a Criminal 
Justice Advisory Council to review the State's capital 
punishment procedures.
    Many Americans have heard about innocent people ending up 
on death row and recognize that we cannot tolerate errors when 
the State is imposing such a final penalty. It is horrific to 
think that we may have already executed individuals who were, 
in fact, innocent. It saddens me greatly that information has 
come to light strongly demonstrating that two men put to death 
in this country in the 1990s may well have been innocent. That 
sends chills certainly down my spine, as I am sure it must for 
all Americans.
    Just law year in Missouri, local prosecutors in St. Louis 
reopened the case of a 1980 murder because the evidence against 
the man convicted of the crime had fallen apart. That man, 
Larry Griffin, was sentenced to death and he was executed by 
the State of Missouri more than 10 years ago. Yet now very 
serious questions about his guilt are being raised. CNN 
recently reported that a University of Michigan law professor 
who researched the case found that the first police officer on 
the scene now claims the person who testified as an eyewitness 
gave false testimony. The victim of the shooting, who was never 
contacted before Mr. Griffin's original trial, stated that the 
person claiming to be an eyewitness at the original trial was 
not present at the scene of the crime.
    In Texas, a young man named Rubin Cantu was executed in 
1993. He was just 17 at the time of the murder for which he was 
executed. Again in this case, the only eyewitness to the crime 
has recanted his statement and told the Houston Chronicle that 
Cantu was innocent. The Houston Chronicle also reported that 
the judge, prosecutor, head juror, and defense attorney have 
since realized that, as the newspaper put it, quote, ``his 
conviction seems to have been built on omissions and lies.''
    Mr. Chairman, I am sure you would agree the potential loss 
of one innocent life through capital punishment should be 
enough to force all of us to stop and reconsider this penalty. 
This case illustrates the grave danger in imposing the death 
penalty.
    In closing, I hope this hearing will help all of us to take 
a long, hard look at capital punishment. I want to sincerely 
thank you again, Mr. Chairman, for deciding to hold this 
hearing and I look forward to hearing from all of our 
witnesses. Thank you, Mr. Chairman.
    Chairman Brownback. Thank you, Senator Feingold. I 
appreciate that very much and the thoughtfulness you have put 
into this topic for many, many years.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Chairman Brownback. Dr. Coburn is trapped in another 
meeting and he wanted me to pass along that he appreciates very 
much you being here, Mrs. Scott, as a constituent and also is 
grateful for your willingness to share your story in this 
circumstance. He would be here, but he is trapped in another 
session.
    With that, I would like to turn the floor over to you, Mrs. 
Scott, to state your story. We have a time clock that is a bit 
of a guideline. If you need to go longer, that is fine, but we 
will run it at 7 minutes and then that will give us a chance to 
be able to ask some questions then afterwards, if we could. 
Mrs. Scott.

          STATEMENT OF MRS. ANN SCOTT, TULSA, OKLAHOMA

    Mrs. Scott. First of all, I want to thank you for inviting 
me here. Let me introduce my daughter to you. This is a picture 
of her that was taken many years ago. She was a fourth-year 
junior at the University of Oklahoma at the time of her murder. 
She was studying both elementary education and she minored in 
music. She played both the flute and the piccolo.
    Our daughter, Elaine Marine Scott, age 21, a fourth-year 
junior studying elementary education at the University of 
Oklahoma, was brutally beaten, tortured, sexually assaulted, 
and beaten to death by Alfred Brian Mitchell at the Pilot 
Recreation Center in Oklahoma City on January 7, 1991. Mitchell 
had just been released on his 18th birthday from Lloyd Rader 
Juvenile Detention Center in Sand Springs, Oklahoma.
    Elaine was born in Novato, California, a small California 
town about 30 miles north of San Francisco. She went to school 
in Novato until the sixth grade, when her father was 
transferred to Tulsa, Oklahoma, with Safeway Stores. With all 
the crime and violence that was up and coming in California, we 
thought that Oklahoma would be a quiet, drug-free State and a 
great place to raise kids. Well, not quite.
    Elaine graduated from Jenks High School with good grades. 
She played both the flute and the piccolo in the high school 
marching band and orchestra and she was a good kid. She 
attended the University of Oklahoma, majoring in elementary 
education and minoring in music. She worked part-time at Pilot 
Recreation Center in Oklahoma City with children from poor 
families.
    Unfortunately for Elaine, Alfred Brian Mitchell was not a 
good kid. Mitchell, who lived in the Pilot Recreation Center 
neighborhood, was released from Lloyd Rader Juvenile Detention 
Center on his 18th birthday. He had been locked up there for 3 
years for raping a little 12-year-old girl that he dragged off 
from her bus stop early one morning. The Department of Human 
Services, DHS, could have kept him for another year, but chose 
not to because they couldn't help him. They needed his bed for 
someone that they thought that they could help, and so he came 
home.
    Seventeen days after his release from Lloyd Rader, he beat, 
tortured, sexually assaulted, and beat our beautiful daughter 
to death using his fists and a golf club until it broke. He 
stabbed her in the neck five times with a compass that you 
would use to make circles with. And finally, he used a wooden 
coat tree that crushed her skull and sent shards of wood 
completely through her brain. She never had a chance.
    The homicide detectives and the police forensic people did 
an outstanding job of keeping us informed of everything that 
was happening as they traced all the evidence and put things 
together. Mitchell was identified and caught within 24 hours. 
At first, it was thought that he was just a witness, but as 
time went on, he was booked for murder, robbery of her car, 
larceny, and finally for rape.
    Our first encounter with Mitchell was at the first 
preliminary hearing, which was held that February. There he 
was, smiling and laughing with his family and friends as though 
he didn't have a care in the world. After three different days 
of testimony, the judge ruled that the case would go to trial. 
On leaving the courtroom, Mitchell told all the news reporters 
that the prosecutor would have to prove his case. He then got 
on the elevator, still smiling at the reporters, and was taken 
away.
    In June 1992, the trial finally started after preliminary 
hearings, many delays because of a lack of funds for expert 
defense witnesses, and several different dates for motion 
hearings. Again, and all through the trial, Mitchell smiled and 
laughed at the news reporters. Even when he was on the witness 
stand, he never admitted that he and he alone had murdered 
Elaine. It took the jury one-and-a-half hours to find him 
guilty of murder, and 2 hours to give him the death penalty.
    In 1999, there was an evidentiary hearing at the Federal 
court, where it was determined that the forensic chemist from 
the Oklahoma City Police Department had lied on the witness 
stand. Even though Judge Thompson from the Federal court threw 
out the rape charges, he upheld the death penalty because the 
murder itself was so heinous, atrocious, and cruel.
    In July of 2000, at the Tenth Circuit Court, the judges 
overturned the sentence because it was felt by them that the 
jury might have given Mitchell a lesser punishment if the rape 
charge had never been presented, and so back to court we went 
in October of 2002 to redo the sentencing phase of the trial. 
After 2 weeks of listening to evidence, the case was given to 
the jury. It took them 5 hours, but they came back with a 
unanimous verdict and once again gave Mitchell the death 
penalty. Mitchell, true to form, stood at the elevator waiting 
to be taken back to prison, turned and gave our oldest son an 
ear-to-ear grin. He then got on the elevator and was once again 
taken away.
    On October 11, 2005, we finally started the appeals process 
again with the State Court of Criminal Appeals. We have not as 
of this date had a decision from them, nor do we know when we 
will. But we will be ready to continue on and see this through 
to the end when it comes.
    The defense's big argument during the Court of Criminal 
Appeals hearing was that Judge Susan Caswell was a friend of 
our son's mother-in-law. David's mother-in-law is Judy Bush, 
who was the head of Homicide Survivors, a support group in 
Oklahoma City. Because of her position, she knew all of the 
judges in Oklahoma City at the district court and therefore she 
had made friends with Judge Susan Caswell. But this was the 
defense's big thing at the Court of Criminal Appeals.
    Through all of this, Mitchell has never shown any remorse 
for his actions. If you ask if we seek retribution, yes, we do. 
Alfred Brian Mitchell was found guilty by two different juries 
of his peers. He was given the death penalty because of his 
crime and because it was felt that he would commit more crimes 
if he were ever, under any circumstances, released. I, me, I 
want this bully gone. I want him to disappear off the face of 
this earth. I want him to rot in hell for all of eternity. He 
is a bad seed that never should have been born. He is an 
animal, and when you have animals that attack people, you take 
them to the pound and you have them put away. What this animal 
has taken from us can never be returned. It has taken a lot of 
the love and the laughter from our home.
    I have had my husband break down and sob in my arms, and I 
have watched his health, both mental and physical, deteriorate 
over the years. I have seen Elaine's two brothers struggle with 
life. David, the oldest, has gone through panic attacks and at 
times thought that he should be dead because he has outlived 
his sister and that is not the way it should be. I have watched 
Elaine's little brother clam up. To this day, Robert still 
cannot talk about his most favorite person in the whole wide 
world. His big sister is gone, taken violently from him, and he 
still can't deal with it. The rest of us, my husband and I, 
have closed ranks with our children. Even though they have 
grown and David is married now, we still have become more 
protective and we are frightened every time that they are out 
of sight or we don't hear from them.
    Will we ever get over the murder of our daughter? Will 
there ever be any closure for us? I don't think so. Even after 
Mitchell has been executed, we will still be left with all of 
our wonderful memories of Elaine and all of the horror that was 
done to her. But perhaps once he is gone, we will be able to 
spend more time on the happy memories and less on thinking how 
her life ended. We will be at Alfred Brian Mitchell's 
execution. We will not rejoice, because it won't bring Elaine 
back. But we don't expect that it will. However, the process 
will finally be over and we will no longer have to spend any 
time or effort on pursuing justice for our daughter. Perhaps we 
will finally hear the remorse that so far has not been 
expressed. But for certain, what it will do is to ensure that 
he will never be able to hurt anyone ever again, and I hope and 
pray that you will never have to walk in our shoes.
    Thank you.
    Chairman Brownback. Thank you, Mrs. Scott, for being here 
and sharing that testimony with us.
    [The prepared statement of Mrs. Scott appears as a 
submission for the record.]
    Chairman Brownback. Ms. Schieber.

     STATEMENT OF VICKI A. SCHIEBER, CHEVY CHASE, MARYLAND

    Ms. Schieber. Chairman Brownback, Senator Feingold, I am 
very privileged and honored to be here today before you.
    I am the mother of a murder victim, Shannon Schieber, who 
was murdered in the city of Philadelphia in 1998. I am here 
today speaking also for my husband and my son, Shawn. I am on 
the board of two organizations that actively work to oppose the 
death penalty in our country. I am a resident of the State of 
Maryland and I serve there on the board of the Maryland 
Citizens Against State Executions, and I am also an officer and 
on the board of a national nonprofit group called Murder 
Victims' Families for Human Rights. I am testifying today on 
behalf of the representatives of families in every State, every 
State, who have lost a loved one but who have actively been 
involved in opposing the death penalty.
    We believe and have come to believe through our own 
personal tragedies and experiences that the death penalty does 
not heal nor will we find closure of that horrible ``c'' word 
that we all hate. Killing my daughter's assailant, however, 
would not honor our daughter, and, of course, like Ann, 
certainly I agree would not bring her back. The death penalty 
does not help to create the kind of society that we want to 
live in, a society where life is valued and respected. We 
believe that executions just create another grieving family. It 
doesn't lessen our own pain. And we are very, very concerned 
about the conflicted message that we believe the death penalty 
in our country sends to our children about society's respect 
for human life. I have a little saying on my refrigerator that 
many comment on. Why is it that we kill people for killing 
people when we are taught that killing is wrong?
    My husband and I were both born and raised in the Midwest 
and raised in homes with a deep religious faith. Hatred and 
revenge were never condoned and we were taught that the 
ultimate form of hate was the deliberate taking of another 
person's life. We were taught, as well as we taught our 
children, that we are our brother's keeper and that human life 
is sacred and we are here in this life to do something to make 
a difference.
    So in living these principles, we couldn't apply the death 
penalty to our own daughter's murderer. If they aren't your 
principles when it is tough, they never were your principles in 
the first place. We would have had to be complicit in the 
application of that death penalty once the assailant of the 
murder of our daughter was apprehended.
    So not only have we gone through this terrible, terrible 
tragedy, but after the person was apprehended, we faced an 
incredible system in the city of Philadelphia where the 
district attorney and the prosecutors could not believe that 
now that this person was apprehended, that we would want to 
have life without parole, that we did not believe in the death 
penalty, even though we were very outspoken about it for many 
years while they sought to find this person. They even at one 
point said to us, ``Didn't you love your daughter? Why wouldn't 
you want this?'' Oh, yes, we loved our daughter. I have to 
spend just a few minutes telling this incredible gift that we 
were given.
    Our daughter was born and raised in the State of Maryland. 
She was brilliant and she was beautiful. She was beautiful not 
only on the outside--there is someone sitting behind you that 
looks just like her--but she was beautiful on the inside. She 
was taught to give and share. She had many friends. She was a 
very kind and caring woman. She had friends of all faiths and 
of all races and she was involved in so many public and active 
support groups. The charities that my husband and I were 
actively involved in, our children served in, too.
    She was a straight-A student, went to high school, 
president of the student body, National Merit Scholar, 
Presidential Award Scholar, could have picked any school that 
she wanted to go to college, absolutely brilliant. She went to 
Duke University and in 3 years earned a triple major in math, 
economics, and philosophy with a 3.7 grade point average, 
almost an unheard of thing. She could have chosen any graduate 
school to go to. She wanted so much to do so much for society. 
So she had to go to the No. 1 school, very competitive, so she 
chose the Wharton School of Business, the University of 
Pennsylvania. At her age of 23, she was accepted on a full 
scholarship and stipend to get a Ph.D. in finance and insurance 
there. She was absolutely a gift.
    Well, we didn't know when we moved her to Philadelphia. We 
talked to the University of Pennsylvania housing department. 
They said, oh, there is this very safe area. Where would be the 
best place to have her live? It was just south of Rittenhouse 
Square in Center City. It was the brownstone where there were 
about six other graduate students living in the same building. 
What we didn't know when we moved her into what we thought was 
a safe neighborhood, after checking everything out, was that 
there had been a serial rapist operating in that very area, 
within five or six blocks. All the victims, and there were four 
rapes and assaults by this same individual in that area within 
a few months before we moved her there.
    So when she was walking home one night, she just thought 
the guy that was following her was just trying to pick her up. 
She did not know that these crimes were all there. The police 
had DNA evidence. they didn't report it to the community 
because of a terrible practice that not only happened in 
Philadelphia, but we have learned has happened and is happening 
in other cities, and that is crimes are downgraded. You can 
make your city look a lot safer if you don't report all crimes, 
and sexual assaults are often hard to get away with. You can 
just tell her, well, you probably had too much to drink or 
maybe it was your boyfriend. So there were several crimes 
before our daughter's that didn't get reported, so there was no 
pattern and nothing given to the community to warn her.
    At two o'clock in the morning of May 7, the guy climbed to 
a second-floor balcony and broke in and murdered her. She 
screamed for help. A graduate student across the hall called 
the police. ``I heard my neighbor screaming. I heard a choking 
sound.'' The police got there very quickly, stayed for five 
minutes. After knocking on the door, looking around, they said, 
``Nobody is in there. I don't hear anything,'' and they left. 
The 911 call tape we had, it had no equivocation in that 
person's voice. The police left.
    The next day, my son, who was planning to have lunch with 
her on his way back to his college in Massachusetts, went to 
the door. The guy across the hall said, ``Oh, I heard them. I 
called 911. I heard them.'' They pushed her aside and took the 
door and there he found her, raped, and beaten brutally. What 
were we going to do now?
    We had chosen to honor our daughter in very positive ways. 
There is a scholarship in her name at Duke. There is a roofing 
endowment fund, inner-city families trying to rebuild. But we 
are honoring her to try to abolish the death penalty and help 
create a society where life is valued, to work to reduce 
violence rather than perpetuate it and to help improve our 
seriously, seriously flawed system, one that is racist, 
arbitrary, and seriously open to abuse.
    We believe the current system does not serve victims' 
families. It focuses attention and vast expenditures on the 
offenders, but there is no support for our victims. The peace 
of the families I represent today has given us incredible 
energy. We are not spending endless efforts in courts pursuing 
appeals and legal actions. We have pursued life without parole 
in the cases where we may do that, and at the hearing, the 
sentencing hearing, the person who murdered our daughter turned 
around and said he didn't like the way he was and he asked to 
be forgiven. Ann did not have that same experience. It is a 
very, very healing process and I work very hard to talk to the 
person's family to work with them to help us all heal, because 
it is a society that is badly in need of it.
    And may I take one last example of something that happened 
just this summer. I have been very honored and privileged to 
get to travel in many parts of the world. In my husband's job, 
you get a lot of frequent flyer miles. Our last visit was in 
the European Union last summer and they were giving a lot of 
the tour guides descriptions of everything they do there in 
Europe and comparing them to our country, because most of the 
people on the tour were Americans. And they said, well, what 
sort of things do you have to agree to to be here?
    ``Well,'' they said, ``one of the things that we all have 
to agree to to be in the EU--you don't have to agree to 
everything, but you have to not have the death penalty as a 
punishment for a criminal for a murder or for a serious crime. 
We do not allow that in this country. And,'' she says, ``but 
you are Americans. We are the countries that founded you. We 
are the countries that settled your country. What you are doing 
is medieval.'' I was so embarrassed. I was so embarrassed. And 
that is not the only part of the world that I have been in 
where people just don't understand what we do in our country. 
They even know a lot about it. They say it is so seriously 
flawed. I mean, it depends on what State you commit the crime, 
whether you are black or white. It depends on a whole horrible 
system that we hope your work here will somehow have to do to 
change it.
    Finally, I want to give a quote that President Bush gave 
last night. It caught my eye. ``Our country's greatness is not 
measured in power or luxuries, but by who we are and how we 
treat one another.'' I want to be proud of my country, one that 
has a fair and not a flawed system of justice, and I am going 
to work the rest of my life to try to abolish that system. I 
have many opportunities. I speak to many colleges and 
universities across the country, many groups and informal 
groups, I have had that honor. It is--I think, 1 day, maybe 
somebody in that group will be a future Supreme Court Justice, 
a Senator, or someone that can make a difference in this 
system, and I do this all in honor of Shannon Schieber.
    Thank you very much.
    Chairman Brownback. Thank you.
    [The prepared statement of Ms. Schieber appears as a 
submission for the record.]
    Chairman Brownback. It is tough to question you ladies. 
Hopefully, my colleague will have better, more lucid questions. 
It is just you have such powerful stories and circumstances to 
talk about.
    Mrs. Scott, you talk--and this hearing is about the death 
penalty and I really do want to hear from people who have been 
victimized by others. As I take it, really, at the core for you 
is the issue of closure, of finally getting this resolved and 
closure with justice. Is that--I mean, when you search your own 
heart about this and that this is a right and fair thing, that 
is at the core, would that be correct?
    Mrs. Scott. Yes and no. I think that my husband and I would 
possibly consider a life without parole sentence if it truly 
meant life without parole. In the State of Oklahoma, you can 
become eligible to have your sentence downgraded from life 
without parole to a life sentence after serving 15 years.
    Chairman Brownback. So you don't trust the system to 
actually--
    Mrs. Scott. I don't.
    Chairman Brownback [continuing]. Mean life without parole?
    Mrs. Scott. Absolutely not. Now, because--and when you are 
given a life without parole sentence in Oklahoma, you are no 
longer in a maximum, or you do not have to be in a maximum 
security facility. You can be downgraded to a medium facility, 
and there are an awful lot of people who escape. There are an 
awful lot of people who murder one another in medium security. 
I don't consider it a safe option.
    The death penalty, in our case, is a right and proper 
sentence for the very simple reason that Mitchell had already 
dragged off a little 12-year-old girl and raped her. When he 
was through with her, and it was testified to, he told her, 
``If you tell anyone, I will kill you.'' Her family was so 
frightened when he was released from juvenile that they packed 
up and they moved. Her father was Hispanic, quit a very good 
welding job that he had in Oklahoma City, moved the family to 
El Paso, and both he and his wife and I believe one of their 
sons had to go to work to support the family. But they were 
frightened enough for Maria that they did that.
    Chairman Brownback. So yours is more you don't trust the 
system and you don't believe the system can keep people safe 
from a known murderer in it.
    Mrs. Scott. That is correct, but I truly feel that the 
death penalty is the right sentence for people like Alfred 
Brian Mitchell. There is absolutely no remorse on his part. 
Would he do it again? Absolutely. He had already raped one 
little girl and had been released after serving his time. When 
he got around to our daughter, he sexually assaulted her. She 
lay on the floor, beaten within an inch of her life, and he 
masturbated on her. He did not want to get caught for rape, and 
so he masturbated on her and then he beat her to death because 
he didn't want her to tell. This was how he was going to escape 
the system.
    So what would he do if he was given another bite at the 
apple? I don't know. I don't want to know. We have no daughters 
left to give. Who is going to give up their daughter if he is 
ever released?
    Chairman Brownback. Ms. Schieber, answer--and I am not at 
all pitting you two ladies against each other.
    Mrs. Scott. Oh, that is OK. We are used to it.
    Chairman Brownback. Well, that is not my objective at all, 
but I honestly--
    Mrs. Scott. Thank you.
    Chairman Brownback. --really want to know from your 
opinions. Answer her questions about the system not being 
trustworthy on this or the person getting out and committing 
this crime and we can't protect society from somebody who has 
no remorse, no regret, and would appear to be willing to kill 
again.
    Ms. Schieber. Thank you, Senator. I am very concerned about 
some things about the system, too, but I am a person of--I 
believe that they have done a very good job in my daughter's 
assailant's case. When we were discussing all this through the 
sentencing hearings and everything else, as a part of this 
system, we wanted the life without patrol in a Federal security 
system and we wanted him there the rest of his life.
    Everyone that was working on this case knew quite clearly 
that this person, if he ever got out or was let out because of 
some timed parole system, would go back and do exactly the same 
thing. He was a sexual predator. There were 14 victims that 
were known and linked by DNA. Our daughter was the only one 
murdered, and we believe that was because the police were at 
the door and he had to strangle her. But he did not go in there 
intending to do that, to put her to death.
    The point about it, though, is he had to be kept in prison 
for the rest of his life and we were assured that it would be a 
maximum security prison and that there would be no time limits, 
that he would not come up for parole, and that was what gave us 
the peace that that was the right decision. I can understand, 
listening to some of Ann's concerns, if this was in a State 
that didn't give those kinds of insurances to the family, that 
would be very, very hard for me. And, you know, you can 
understand. That would not change my view personally about the 
death penalty, but I do believe that the system has to be 
trusted, and where we see problems and flaws, we need to work 
to change that.
    Chairman Brownback. I have gone over my time. Please feel 
free to take an equal amount, Senator Feingold.
    Senator Feingold. Mr. Chairman, I don't have any questions 
for the panel but I want to thank both of you again for your 
moving testimony. I appreciate your coming here to share such 
highly personal stories. It really makes a person think again 
and again about this issue. I just think this is an example of 
where victims' voices are not always heard in this kind of 
debate and this is the right way to start this hearing, Mr. 
Chairman. Thank you very much.
    Chairman Brownback. Is there anything either of you would 
like to add additionally on your views on the death penalty or 
the system?
    Mrs. Scott. To the best of my knowledge, there has never 
been anyone who has been executed who was found innocent. There 
was a case not too long ago, and I can't remember where it was, 
where they went back and they retested the DNA because everyone 
was sure that this person was innocent. It came to be that he 
was not. It was a definite DNA match. Since we have DNA, yes, 
there have been a number of cases that have been reversed 
because it was not a DNA match, and for those people, it was a 
good thing that we had the DNA and I am glad that that was 
found out.
    But yes, as technology has developed and we do have these 
tools, I cannot see--and with all the safeguards that we have, 
when we go after appeal and appeal and appeal before the death 
penalty ever is carried out, I can't see that there are really 
going to be any mistakes. There has not to this time been 
anyone who has been executed that has been proven innocent.
    Chairman Brownback. Ms. Schieber, anything else?
    Ms. Schieber. I support the idea that if we just completely 
eliminated the system in our country, go back to where we were 
in our earlier days and listen to many other people and parts 
of the world, then we are going to start operating with a life 
without parole if it is appropriate for the sentence that the 
person is given. If it is appropriate, that would be what would 
be applied, the life without parole. The death penalty wouldn't 
exist. You wouldn't have all these costly, long trials, 
appeals, years and years on death row that are very, very 
debilitating to the families and to the people in our society.
    I think we can do much better use of our money and 
resources in this country and I hope that the beginning of this 
whole process of review will happen here with this Committee 
and I applaud your efforts for these hearings and I hope we go 
forward in this country with the groundwork you have laid here. 
Thank you.
    Chairman Brownback. Thank you both very much. You will be 
in my prayers tonight for healing.
    Ms. Schieber. That is very important to me.
    Chairman Brownback. The next panel is Dr. John McAdams, 
Professor of Political Science, Marquette University in 
Milwaukee; Mr. Stephen Bright, President and Counsel, Southern 
Center for Human Rights; Dr. Paul Rubin, Professor of Economics 
at Emory University; and Dr. Jeffrey Fagan, Professor of Law 
and Public Health at Columbia University.
    Mr. McAdams, we will start with you. We are going to run 
the time clock at seven minutes. I would like to hold you to 
that so we could get to some questions. The swearing in 
ceremony for the new Justice of the Supreme Court is at four 
o'clock today and I would like to make it down for that, so I 
am going to run a bit tighter on timeframe. I don't know if my 
colleague is as excited as I am about the new Justice on the 
Supreme Court.
    [Laughter.]
    Chairman Brownback. He may not be as interested in 
finishing quite so on time, but it is an historic time and an 
historic day, so we would like to--and each of your full 
statements will be included in the record as if presented, so 
if you would like to summarize, that is perfectly acceptable, 
as well. The full statement will be included in the record.
    Mr. McAdams.

  STATEMENT OF JOHN MCADAMS, PROFESSOR OF POLITICAL SCIENCE, 
           MARQUETTE UNIVERSITY, MILWAUKEE, WISCONSIN

    Mr. McAdams. There are an easy dozen issues surrounding 
this and I am going to limit myself to only one. I am used to 
talking 50 minutes at a time and now I have seven. I am going 
to address the whole issue of ``innocents'' on death row and 
innocents who claim to have been executed.
    The key thing to remember about the anti-death penalty 
activists is that they vastly inflate the number of innocents 
who have ever been on death row and they make claims of 
innocents being executed that simply don't survive scrutiny. 
The sort of canonical list of innocents supposedly put on death 
row is from the Death Penalty Information Center. When I 
checked the website Sunday, it listed 122 people, which sounds 
appallingly large, but if you analyze it even superficially, 
you find that it is terribly inflated.
    For example, back in 2001, I analyzed the list when it had 
95 people on it and by the admission of the Death Penalty 
Information Center, 35 inmates got off on procedural grounds 
and another 14 got off because a higher court believed the 
evidence against them was insufficient. Of course, if the 
higher court was right, there is an excellent reason to release 
them, but it is not proof of innocence.
    The State of Florida in 2002 noted that there were 24 
people on the list from Florida who were supposedly innocents 
on death row and they appointed the Florida Commission on 
Capital Crimes that concluded that only four of those 24 
cases--in only four of those 24 cases was the factual guilt of 
the inmate in doubt.
    Other examinations have been no more favorable. For 
example, a liberal Federal district court in a case called 
Quinones in New York ruled the death penalty unconstitutional, 
but if you look at that particular case, the court admitted 
that the Death Penalty Information Center list ``may be over-
inclusive,'' and following its own analysis asserted that for 
32 people on the list, there was evidence of factual innocence, 
as opposed to procedural innocence, and Ward A. Campbell, 
supervising Deputy Attorney General of the State of California, 
reviewed the list when it had 102 people on it and he concluded 
that, I am quoting, ``it is arguable that at least 68 of the 
102 defendants on the list should not be on the list at all. 
Only 34 released defendants have claims of actual innocence, 
less than one-half of 1 percent of the 6,930 defendants 
sentenced to death between 1973 and 2000.''
    Indeed, staffers of this Committee--it was the minority 
staff at the time--produced a report on, at that time, I think 
it was 2002, S. 486, where they did a thorough job of debunking 
a lot of these claims of actual innocence.
    So believing the claims of the anti-death penalty activists 
about the number of innocents on death row is roughly 
equivalent to believing the National Rifle Association about 
how many Americans have saved themselves from serious bodily 
harm because they own and carry guns, or the claims of NARAL 
about how many back-alley abortions would result from 
overturning Roe v. Wade. Activists tend to inflate the evidence 
and make it serve their purposes.
    Another question is, have any innocents been executed? Have 
any innocents at all been executed? And indeed, anti-death 
penalty proponents make that claim. Back in the 1980s, a volume 
by Hugo Adam Bedau and Michael Radelet claimed 23 innocent 
people executed in the U.S. in the 20th century. They only 
named one person since the 1970's that they claimed was 
innocent and had been executed, and their claims--the fellow 
was named James Adams--their claims about that person were 
debunked in a Stanford Law Review article that took Bedau and 
Radelet to task for, quote, ``disregard for evidence'' and 
putting a spin on the evidence to support their thesis of 
Adams' innocence.
    Interestingly, if you look at the more sensible death 
penalty opponents, they won't make strong claims. Let us 
consider a guy named Barry Scheck, who is co-founder of the 
Innocence Project. He was in 1998 interviewed by Matt Lauer on 
the ``Today Show'' and Lauer asked him a very leading question. 
Quote, ``Since 1976, 486 people have been executed in this 
country. Any doubt in your mind that we put innocent people to 
death?'' Scheck responded, ``Well, you know, I--I think that we 
must have put to death innocent people, but if you are saying 
to me to prove it right now, I can't.''
    Now, there are still claims of innocent people being put to 
death. We heard from Senator Feingold. I would urge everyone to 
look at the Death Penalty Information Center website, where 
there is still--if it hasn't been sanitized as of yet--there is 
still an essay making claims of innocence from Roger Keith 
Coleman. And if you just read the essay on the Death Penalty 
Information Center website, you will come away absolutely 
convinced that Coleman must be innocent. But Coleman was the 
guy, you remember, very recently who actually had DNA testing 
and it proved him guilty. So I would urge everyone to please 
read that blurb on the Death Penalty Information website, then 
look at what the DNA evidence found, and I think you will get 
an idea that if you just believe what death penalty opponents 
say, you may be misled.
    On a personal note, I actually teach a course on the 
Kennedy assassination and a lot of these claims of innocence 
remind me of what some conspiracy theorists say to try to get 
their boy Lee Harvey Oswald off the hook.
    Now, death penalty opponents will say that if any who is 
innocent has been put on death row, that is unacceptable, or 
certainly if anyone has been executed who is innocent, that is 
unacceptable. They don't seem to pay a lot of attention to the 
fact that, quite clearly, a very large number of innocents have 
been imprisoned. I refer people to the work of the Innocents 
Project that has found--it has let off at the moment 174 people 
exonerated on the basis of hard DNA evidence and they admit 
that they have a huge backlog of other people.
    Then there is the question of what the reasonable standard 
is. Is it reasonable to believe that a sanction of this kind or 
any public policy can be perfect? We can never fight even a 
just war without having some innocent casualties. The FDA can 
never approve a drug without some people dying of a rare and 
arcane reaction. Standards of perfection simply can't apply to 
any public policy, and it is unreasonable for death penalty 
opponents to try to impose it on the death penalty when they 
wouldn't think of doing so on any other punishment.
    Chairman Brownback. Thank you very much. Thanks for the 
information. We will want to probe some of that in questioning.
    [The prepared statement of Mr. McAdams appears as a 
submission for the record.]
    Chairman Brownback. Mr. Bright.

STATEMENT OF STEPHEN B. BRIGHT, PRESIDENT AND COUNSEL, SOUTHERN 
           CENTER FOR HUMAN RIGHTS, ATLANTA, GEORGIA

    Mr. Bright. Thank you very much, Mr. Chairman. Mr. 
Chairman, Senator Feingold, I am honored to be here today. I 
appreciate the opportunity to talk about this. It is a great 
moral issue in our country today.
    In November, the Birmingham, Alabama News issued an 
editorial opposing the death penalty. It said one reason was 
because it was committed to a culture of life and that the 
death penalty in Alabama and throughout our country was not 
consistent with that culture of life. It quoted Pope John Paul 
II when he said the dignity of human life must never be taken 
away, even in the case of someone who has done great evil.
    But it went on to say the system is broken, and I would 
submit, based on my experience in 30 years of handling these 
cases and looking at it as a teacher, not only is this system 
broken, it has always been broken. I don't think anybody doubts 
that before 1972, the way in which the death penalty was used 
in this country is not something to be proud of, that there was 
race discrimination, that it was almost exclusively against 
poor people, that there were perfunctory trials that weren't 
really trials, and a number of other things, and that it was 
arbitrary. As Justice Potter Stewart said, being sentenced to 
death was like being struck by lightning. There was no reason 
why one person would be sentenced to death and another person 
would not be. And that is why the court found the death penalty 
unconstitutional in 1972.
    Now, 30 years ago, the court approved a group of statutes 
from various States that were supposed to fix all those 
problems and were supposed to end the arbitrariness, supposed 
to end the discrimination, and so forth, but they failed 
miserably. One reason may be that it can't be done. the year 
before Furman, in 1971, the Supreme Court said to try to 
identify the characteristics of offenders and crimes that call 
for the death penalty is beyond human capability. Just a year 
later, basically, we set on a course of trying to do just that, 
whether it can be done or not.
    But nothing in those statutes adopted in 1976, or approved 
in 1976, do anything about the inadequate representation of 
poor people. Virtually everyone who gets the death penalty is 
poor, and anyone who is poor facing a crime is given a court-
appointed lawyer. One city in this country sends more people to 
death than any other, Houston. Three cases where the lawyer 
slept during the trial. That is a pretty extraordinary example. 
I am not saying that every lawyer does or that every lawyer is 
drunk, like the lawyer that represented one of my clients who 
had to literally be picked up off the floor and was put in jail 
for the night to sober up and came back the next day and 
continued the trial. Those are not everyday cases, but the kind 
of mediocrity, the lack of lawyers that have the resources, the 
skills, the capability.
    We represented a fellow who had been sentenced to death at 
a trial where he was represented by a collections lawyer and a 
mortgage lawyer. He gets the death penalty. When he is capably 
represented, he is acquitted in a very short period of time, 
Gary Drinkard, and he is a carpenter right now doing good work 
and is a good citizen of Alabama today.
    There is nothing in those statutes that ensure the accuracy 
of eyewitness identification, nothing that says that every 
person's memory is reliable, every person who testifies, 
nothing that says that informants who are often witnesses in 
these cases testify truthfully.
    Mr. Chairman and Senator, last week, a judge California who 
presided over a death penalty case where a man was sentenced to 
death wrote a letter to the Governor asking that the sentence 
be commuted because he is convinced that the informant who 
testified against that person was not telling the truth when he 
testified at the trial. And that is the presiding judge of the 
case, a judge appointed by Governor Reagan to the bench.
    There is another part of it, though. The innocence 
question, I don't have enough time, unfortunately, to talk much 
about it, but I would make two points. One, whether it is 34 or 
134, that is too many. When people are found innocent, like 
Anthony Porter was, a man who would have been executed, went 
all the way through trial, appeal, and all the post-conviction 
review--the only reason Anthony Porter wasn't executed, 
Senators, is because he was brain damaged and mentally retarded 
and there was a question about was he competent, did he 
understand what was going on. Two days before the execution, he 
gets a stay.
    The journalism class at Northwestern proves that he is 
innocent and gets a statement, a confession from the person who 
actually did it. He was the third person released, not somebody 
that just people claim he is innocent, walked out of the prison 
as innocent, freed by the journalism class at Northwestern. 
Now, something is not right when the journalism students are 
getting people out and the legal system is convicting the wrong 
people.
    I think there are a lot of people that we will never know 
whether they are innocent or not. The DNA cases prove things 
conclusively. You can look at that DNA profile. You can look at 
whatever it is, the semen, the blood, whatever, and you can 
say, that is a match. That is the person. This Roger Coleman 
case, people have been trying to get that examined for years 
and it had been fought tooth and nail by the Attorney General's 
office. If we had done it way back when, we would have known 
all along.
    But take Gary Graham in Texas, sentenced to death, 
represented by Ron Mock, the famous lawyer, 14 people on death 
row, operated out of a bar, is one of the worst lawyers in all 
of Texas, but over and over again, he defended these people, an 
identification case. Later evidence comes out that there are 
people who say they were with Graham, other reasons to question 
it. You will never know. A jury might acquit based on that 
evidence. They might convict based on that evidence.
    The same thing is true of the Cantu case. The same thing is 
true in some of the other cases that we have heard about. We 
just don't know whether the people were guilty or not. Our 
legal system not only is not infallible, it can't sometimes in 
these cases make the right determination.
    But the other point I want to make before I lose all my 
time is just that there is a second question at the penalty 
phase. Is this person so beyond redemption that they should be 
eliminated from the human community? That is not a very good 
question to pose to 12 people, particularly in the heat of a 
horrible crime. And how do you make that decision? Is that a 
theological, is it a moral, is it a legal decision that is 
being made?
    We know that there are many people who are guilty, I will 
grant you, but who are not people who are appropriate for the 
death penalty. I have represented many of those people. Many of 
those people in habeas corpus, as a result of the review 
through habeas corpus, ultimately, their death sentence was set 
aside. One works in my office right now. Another comes to my 
class and talks to my students.
    You know, people are very cynical about religious 
conversion in prison. Billy Moore ran a Bible study group for 
years on death row in Georgia. He has been out since 1991. He 
is still running Bible study groups. He is still active in his 
church. He is supporting a wife and two children, two girls who 
are both in college. This man was guilty of murder, no 
question, but he was not somebody who had committed the most 
heinous murder. It was what usually puts people on death row. 
Who was the prosecutor in the case? Where was the case 
prosecuted, because these cases are decided by plea bargains. 
Is it sought and is it plea bargain? And then the quality of 
legal representation that was appointed to defend him.
    I just last say this. We see in these cases that the death 
penalty is not essential. It was said over here a moment ago, 
well, in war, you have some innocent casualties. When the FDA 
tests drugs, there are going to be a few people who are victims 
of that testing. But we don't need the death penalty. We have 
life imprisonment without parole. It can be fixed. Most States, 
you do not have any chance of parole. Life without parole means 
life imprisonment without any possibility of parole, just what 
it says.
    Chairman Brownback. Please wrap it up, Mr. Bright.
    Mr. Bright. And that is all I am saying, is that we don't 
have to have the death penalty, and therefore justifying losing 
innocent people, whether it is 34 or 134, is awfully hard to 
support.
    Thank you very much, Mr. Chairman.
    Chairman Brownback. In my early career, I was a court-
appointed lawyer at different times and if I had a guy that was 
innocent that I was appointed to represent, it was, I thought, 
easy to get him off. I mean, the system worked, I thought, very 
well. And so when everybody is insulting these court-appointed 
lawyers, I am a bit personally offended here in the system.
    [Laughter.]
    Chairman Brownback. But I understand there are other cases 
involved in this and you make a persuasive point.
    [The prepared statement of Mr. Bright appears as a 
submission for the record.]
    Chairman Brownback. Mr. Rubin.

 STATEMENT OF PAUL H. RUBIN, SAMUEL CANDLER DOBBS PROFESSOR OF 
     ECONOMICS AND LAW, EMORY UNIVERSITY, ATLANTA, GEORGIA

    Mr. Rubin. Thank you. Thank you for having me here today. I 
am an economist and professor of economics and law at Emory 
University and I am not going to be talking about individuals 
or people as an economist. I am talking about numbers. I was a 
co-author of one of the first papers--the first paper, 
published paper looking at the effects of capital punishment 
using post-moratorium data. I am going to talk about that paper 
and several other papers in the literature.
    Modern research on the economics of crime began with the 
work of the Nobel Prize winning economist Gary Becker. One of 
Becker's arguments was that criminals should respond to 
incentives, where the major incentive in the criminal justice 
system is the probability and severity of punishment. Virtually 
all economists who study crime are now convinced that in the 
general case, this is true. An increased chance of punishment 
or a more severe sentence leads to reduced levels of crime. 
These reductions are not only due to incapacitation, but there 
is also a deterrent effect from increased severity and 
increased probability of punishment. When economists applied 
this argument to capital punishment, there was a political 
backlash, even though the theoretical grounds for believing it 
are the same as for any other class of punishments.
    The debate in economics began with two papers by Isaac 
Ehrlich in the 1970s. Ehrlich, a student of Becker's, was the 
first to study capital punishment's deterrent effect using 
multi-variant regression analysis. This enabled Ehrlich to 
separate the effects on murder of many different factors, such 
as racial and age composition, the population, income, 
unemployment, and several other things. Ehrlich wrote two 
papers on capital punishment using different statistical 
techniques and data. Both of these found significant deterrent 
effects, about eight homicides deterred per execution, but the 
data available and the statistical methods meant that many 
people raised serious questions about his work and there were 
lots of papers using similar data and different methods and 
getting different results. Most of these studies suffer from 
flaws relative to what you can do now because of the data and 
the statistical methods available.
    More recently, there have been 12 econometric or economic 
studies on capital punishment that have been conducted and 
published or accepted in refereed journals. Most of these 
studies used improved data and improved statistical techniques, 
various forms of multiple regression analysis, panel data 
analysis, and they look at things including demographics, 
economic factors, police effort, and so forth. They measured a 
marginal effect of execution. That is the effect of execution 
as it actually occurs given the alternatives that actually are 
available in the State and given that the person has already 
been convicted and usually sentenced. Virtually all 12 of these 
studies find a deterrent effect.
    As I said, I was co-author of one of the studies which used 
20 years of data from all U.S. counties to measure the effect 
of deterrent effect. Another study uses monthly data from all 
of the U.S. States to measure the short-term effect of capital 
punishment. Interestingly enough, this paper by my colleague, 
Joanna Shepherd, looks at different categories of murder to 
determine what kinds of murders are deterred by execution and 
she finds that all types of murders, including crimes of 
passion, are deterred, and she also finds that murders of both 
African-Americans and whites are deterred. So people raise 
racial questions about the implementation of capital 
punishment. We don't address that, but her work does show that 
lives of African-Americans are saved by capital punishment.
    Another study looks at the Supreme Court moratorium in the 
1970s and finds that relaxing this moratorium led to fewer 
murders.
    Other papers use different methods and data, but they all--
virtually all--but all of them find a deterrent effect. Usually 
the numbers in the reported literature are between three and 18 
homicides deterred per execution, again, depending on which 
kind of study you are looking at.
    There is one paper that has recently been published in the 
Stanford Law Review that is critical of some of these studies. 
The authors find that it is possible to use various statistical 
manipulations to apparently eliminate some of the deterrent 
effect that some of the studies have found. Interestingly 
enough, this paper has not been subject to the scientific 
refereeing process. It was published in a law review, where the 
refereeing is done by students. It is in the process of being 
reexamined and it is hard to know what it will find, but even 
then, this paper only considers some of the empirical papers 
and some of the methods used. There are still many other papers 
that it does not consider that also find deterrent effect.
    So I think at this time, we have to say that the weight of 
the evidence is pretty clearly that there is deterrence. This 
is what economic theory would predict. It predicts that people 
respond to incentives. There is no stronger incentive than 
avoiding being executed. And the weight of the statistical 
evidence, as it exists now, is consistent with the deterrent 
effect.
    I thank you.
    Chairman Brownback. Thank you very much, Dr. Rubin. I look 
forward to exploring that some more with you, too, in 
questions.
    [The prepared statement of Mr. Rubin appears as a 
submission for the record.]
    Chairman Brownback. Mr. Fagan.

STATEMENT OF JEFFREY FAGAN, PROFESSOR OF LAW AND PUBLIC HEALTH, 
            COLUMBIA UNIVERSITY, NEW YORK, NEW YORK

    Mr. Fagan. Thank you, Chairman Brownback, Senator Feingold, 
for having me here. Professor Rubin has laid the case for 
deterrence, which has been argued to be now a rationale for the 
expansion of the use of capital punishment by some advocates. 
But also, as he noted, a number of other social scientists and 
scholars challenge the scientific credibility of the new 
findings and they warn about the moral hazards and practical 
risks of expanding the use of capital punishment. So I think 
this lays out some public policy choices that are fairly clear 
on capital punishment and that they, in part, depend on the 
accuracy, the reliability, and the certainty of this new social 
science evidence.
    So I want to testify today about some significant errors 
and flaws that I have found in the work that Professor Rubin 
has referred to, a paper by John Donahue in the Stanford Law 
Review, some errors that he has found, and discuss just exactly 
what the nature of the weakness in the evidence is, and then 
talk about how that weakness in the evidence can become part of 
an algebra of public policy to think about how to go forward or 
not go forward with capital punishment in the future.
    We find, in general, not just Professor Donahue's paper but 
my own work, as well, that the new deterrent studies are 
fraught with a number of technical and conceptual errors. The 
data don't speak clearly at all as to whether or not there is 
an effect, the size of the effect, if there is one, and even 
the direction of the effect, if there is one.
    We find the results are extremely fragile and unstable. 
When they are subjected to other kinds of analysis, different 
measurements, different analytic strategies, or whether 
additional factors are introduced into the models themselves, 
the results bounce around. Sometimes they are significant, 
sometimes they are not. The effect sizes go up, the effect 
sizes go down.
    Second, the new studies omit several important factors that 
are common sense improvement issues or forces that drive down 
murder rates or drive up murder rates. The most important one 
is the growing use of life without parole sentences for capital 
murders. LWOP has the same incapacitative effect as does 
execution and it has deterrent effects, as well.
    The 1978 panel of the National Academy of Sciences found 
that it was virtually impossible to disentangle deterrence and 
incapacitation from the social science evidence about deterrent 
effects. At least 100 executions since Gregg in 1976 were 
voluntary. These are death row inmates who elected not to fight 
their execution, and at least some of these persons stated on 
the record that death was preferable to life in prison. When 
multiple murderers like Michael Ross in Connecticut said that 
they prefer execution to life imprisonment, one must seriously 
ask whether life without parole is not an equally strong, if 
not stronger, deterrent.
    To omit this factor is a very serious bias in the 
scientific estimates of the deterrent effects of execution. 
LWOP is a far more frequent sentence today in murder 
convictions than the death penalty. In States like California, 
Pennsylvania, and North Carolina, LWOP sentences vastly exceed 
the number of death sentences that are given. And as we have 
noted before, Texas now has introduced the possibility of life 
without parole. In Texas, where much of the effect is 
concentrated, we suspect that over the next several years, as 
more LWOP sentences occur there, the Texas effects will begin 
to be moderated, if not neutralized.
    Beyond LWOP, many of the studies have failed to consider 
incarceration generally. There is one paper by economists 
Lawrence Katz and Steve Levitt who conclude that there is no 
deterrent effect from executions, but a very large deterrent 
effect, a suppression effect on murder, from natural deaths 
that take place in prisons. They conclude that prison itself, 
prison conditions, specifically undermine the case for 
deterrence. In a few studies that actually do compete 
deterrence with incapacitation, they find that the 
incapacitation effects are much higher by imprisonment.
    Many of the studies just simply don't take into account 
other factors that we know drive homicides up and down over 
time. Probably the most significant is drug epidemics. Most of 
the homicide declines and rises in the U.S. have followed 
almost lockstep with the rise and fall of drug epidemics over 
time, and yet drugs are just simply not a part of the equations 
that are used to estimate deterrent effects.
    In our analysis right now at Columbia we are undertaking, 
we are looking specifically at something that has not been done 
in the capital punishment literature, which is look at those 
crimes which are subject to the death penalty, capital murders 
and things that fall under the felony murder rules. And our 
preliminary estimates, which we will subject to peer review as 
good science should be, suggest that the lines are actually 
flat. There is no deterrent effect whatsoever on capital 
murders, the kinds of murders that usually evoke a death 
sentence--robberies, homicides, homicides in the course of 
sexual assault, killings of police officers, and so on.
    When you take the weakness and fragility of the evidence on 
deterrence and balance it against two other realities of 
capital punishment, I think it changes the algebra when you 
start to think about public policy choices involving capital 
punishment. First, the costs of capital punishment are 
extremely high. Even in States where prosecutors rarely seek 
the death penalty, the cost of obtaining convictions and 
executions in capital cases range from $2.5 to $5 million per 
case in current dollars--I have cited studies in my testimony 
where these figures came from--compared to less than $1 million 
for each killer who is sentenced to life without parole. Local 
governments bear the burden of these costs, diverting almost $2 
million per capital trial from local services--hospitals, 
health care, police, and so on, causing counties to borrow 
money or perhaps even raise taxes to finance capital 
prosecutions.
    Next, errors are a reality and they can't be ignored in 
this calculus. I simply don't accept the idea of collateral 
damage as something we should consider in the discourse on 
capital punishment. In our research at Columbia, Professor Jim 
Liebman and myself--Jim has testified before this Committee, 
this Subcommittee--we have shown that error rates in capital 
cases are high. Two-thirds was the figure that we came up with. 
We think that is a conservative figure, and we designed our 
study to produce a conservative figure. We have pretty good 
evidence that in some States, Pennsylvania and Virginia being 
good examples, the rate of error has climbed since we ended our 
study in 1995.
    These are serious errors. Half the reversals at these 
stages were for errors that undermined the reliability of the 
verdict that the defendant committed a capitally aggravated 
murder. We don't claim innocence, nor do these defendants 
claim--well, they may claim innocence. We don't think that they 
are innocent, but we do think that their culpability never 
rises to the level that our Constitution demands for capital 
punishment.
    We find that 9 percent of the cases that we studied between 
1973 and 1995, 9 percent of the retrials following reversals 
wound up with exonerations, and not for the technical errors of 
witnesses disappearing. They found the other guy. That is an 
extraordinarily high rate.
    Most important to today's hearing is the fact that errors 
and deterrence are closely linked. The States that seek and use 
the death penalty the most are the ones that have the highest 
reversal rates. An increase in death sentences would increase 
the error rate and would increase the risks that follow with 
errors.
    In 1978, a distinguished panel appointed by the National 
Academy of Sciences considered the evidence that Professor 
Ehrlich offered. It was new and compelling at the time about 
the deterrent effects of capital punishment. The panel rejected 
those claims. We are in the middle of the same debate today. 
There are disagreements among good people, well-meaning social 
scientists, economists, and legal scholars about this evidence. 
Many of them now are coming forward after the publications that 
Professor Rubin has cited and are challenging and rejecting the 
claims of deterrence, not so much claiming that there is no 
deterrence, but just simply that the evidence is unreliable for 
making sound public policy choices.
    Chairman Brownback. Please wrap up your testimony, if you 
could, Dr. Fagan.
    Mr. Fagan. Just let me say very quickly that, in sum, the 
high costs of the death penalty, the fragility and 
unreliability of the evidence, the fact that States that 
execute the most people have the highest error rates, these 
frame public policy choices that the States have to make and 
that perhaps we make here in the Federal Government.
    If States are going to spend hundreds of millions of 
dollars trying to buy a small number of executions over the 
next decade that have uncertain effects on future murders, 
might we not spend those dollars more effectively to fund 
additional police detectives, prosecutors, and judges to arrest 
and incarcerate murderers and other criminals who currently 
escape any punishment? Thank you.
    Chairman Brownback. Thank you very much.
    [The prepared statement of Mr. Fagan appears as a 
submission for the record.]
    Chairman Brownback. Just run the time clock, if you are OK 
with it, at ten minutes to give us a chance to get a little 
flow of questioning going here, if that is all right, Senator 
Feingold.
    I would like to come back to Dr. Rubin first on this 
because it is fresh in my mind, I guess, as much as anything. 
What about the comparison of the deterrent effect of life 
without parole versus death penalty? Has that comparison been 
done in some sort of model that is reliable, or can it be done?
    Mr. Rubin. I haven't seen it done. Perhaps Professor Fagan 
has. As he says, his reports aren't published yet. But what we 
do and what the studies that I mentioned do is they compare 
capital punishment with the actual alternatives that exist in 
the States today. So if States are doing that, then what the 
studies are finding is relative to what would have happened to 
that person had he not been executed. So in that sense, they 
are comparisons. But if States are just adopting them, then we 
don't have any evidence.
    I was on Bill Reilly's show one time and he said, ``What 
about sending people to Alaska, where it is very cold, and 
making them break rocks?'' And I said, well, we don't have 
evidence on that particular punishment because it hasn't been 
done, and to the extent that we haven't yet done life without 
parole, we don't. To the extent that some of the States that 
are executing people are also doing that, then we have an 
implicit comparison.
    Chairman Brownback. OK. Then let me ask you this one, 
because this one jumped out at me as a fact, and I am sure you 
have a thought on this. If this is a deterrent under economic 
models, and I appreciate your thought on it. I generally tend 
to think people react to stimuli that are in their environment 
and react one way or another. But in States like New York, that 
have carried out no executions, States like Texas that have 
carried out the highest rates, and both have experienced 
roughly the same drops in the murder rates over time. How does 
the economic model that you put forward explain that, if I have 
those numbers correct?
    Mr. Fagan. I was under the impression that they have about 
the same murder rate now, but that Texas has gone down more 
substantially than New York, but maybe someone else--
    Mr. McAdams. Texas has declined more than any other State 
over the course of the 1990s. It is an outlier in terms of the 
radicalness of the decline.
    Mr. Rubin. With all due respect, Senator--
    Chairman Brownback. Let me finish that thought and then I 
would be happy to engage that. So its rate was substantially 
higher even than, say, New York, and it has gone down--
    Mr. McAdams. That is my understanding. I have certainly 
looked at the data on changes in the 1990s and Texas is an 
outright outlier. It has been going down all over the nation, 
but Texas has the sharpest decline over the decade of the 
1990s.
    Chairman Brownback. Which, Dr. Rubin, you would say this 
proves the theory--
    Mr. Rubin. No, I actually wouldn't say that, because even 
in Texas, I think the number of executions is not--you may not 
pick it up in the gross data. We aren't really looking at 
gross--I mean, we are looking at gross data, but it is simply 
per execution. The number--
    Chairman Brownback. You don't do it amalgamated the total 
number. It is just per execution--
    Mr. Rubin. Per execution, so whether--
    Chairman Brownback. And you don't know of studies on it on 
a Statewide basis to look and compare?
    Mr. Rubin. Well, the trends are--the number of people 
executed is relatively small number to the number of murders, 
so you could have a statistically significant effect and have 
lives saved but still not pick it up in gross data over time 
trends of that sort.
    Chairman Brownback. Mr. Fagan?
    Mr. Fagan. I just wanted to respond to the point about New 
York's homicide rate. New York's homicide rate has declined 
more than any other homicide rate in the United States since 
1991 through 2004. There were no executions during that period. 
And we have actually done a head-to-head comparison both at the 
county level, comparing the big cities in Texas with New York 
City, but also the Statewide comparisons, and it is bigger in 
New York. We have this in print in our studies. Professor Frank 
Zimring has a book coming out on the crime decline that shows 
that New York's crime decline is enormous, far greater by a 
factor that he counts as almost half compared to any other 
State in the country.
    Mr. McAdams. He may be right, because the data I looked at 
may not have included New York because it had no executions. So 
I will, to a degree, back off of my statement. The data that I 
looked at only included States that had at least some 
executions, so it is conceivable that he is right.
    Chairman Brownback. All right. Then we will need to look at 
that ourselves a little bit further.
    Mr. McAdams, I want to give you a chance, and I will give 
this back and forth, to respond to some of Mr. Bright's 
statements on his basis of where he comes from, because you 
took a much narrower focus in the time period and I would like 
to get your response, if I could.
    Mr. McAdams. Well, what particularly that he said?
    Chairman Brownback. I think he took on four or five 
different topics within it and you were addressing two of them.
    Mr. McAdams. Well, he talked about quality of counsel, for 
example, and I think it is important to understand that States 
have made a lot of progress in guaranteeing fair trials for 
people accused of murder and subject to the death penalty, but 
much less progress in protecting the due process rights of 
people charged with non-capital murder.
    For example, there is an interesting article in the Indiana 
Lawyer about the situation in Indiana and it is terribly 
expensive to execute people in Indiana, partly because of 
endless appeals that are basically dead weight loss that have 
nothing much to do with justice. But on the other hand, in 
Indiana, criminal rules require that a death penalty-eligible 
defendant have two death penalty-certified attorneys paid for 
at the public dime and they can put in as many hours as they 
want to, essentially, and bill the State for it. If you are 
charged with murder and you are not subject to the death 
penalty, you get a public defender who may have 130, 150 cases 
a year. They get, for example, routine access to DNA experts, 
money for investigators, money for mitigation experts, et 
cetera, OK. This is in Indiana. But that doesn't apply if you 
are simply charged with non-capital murder in Indiana.
    The truth is that, first of all, this is a reason to 
believe that the death penalty is fairer than alternative 
punishments. That is to say, we hear a lot about due process 
when people are subject to the death penalty, but the truth is, 
it is too easy to put people in jail for life. People who are 
subject to being put in jail for life should get many more of 
the protections that people subject to the death penalty get.
    Chairman Brownback. Mr. Bright, in your testimony you wrote 
that capital punishment is not needed to protect society or to 
punish offenders. Do you feel there ever to be a situation 
warranting the death penalty in this country?
    Mr. Bright. Senator, I don't, no, I mean, for a variety of 
reasons. I mean, one is just the culture of life reason, that 
if we are going to respect life and if we are going to set an 
example for our children, we don't have the death penalty. Even 
if I didn't feel that way, if I thought philosophically there 
was no problem with it, the way it works in practice, I find to 
be so disturbing, and I think, too, we ought to have some 
humility about our system and just realize what the courts can 
and can't do. If we are conservative, we know that the 
government can only do so much, and if people are upset about 
how the government has mishandled some other things, come down 
to the courthouse, because unfortunately, there is a very vast 
number of people being forced into the criminal courts.
    I would agree, I think Dr. McAdams and I agree on this 
point. I think the death penalty is sucking so much of the 
resources out of the system in some States, the ones that are 
taking it seriously and are providing counsel, the death 
penalty counsel and that sort of thing, that it is having an 
adverse effect on the rest of the criminal justice system, 
which is already pretty hard up to begin with. So I think that 
is true.
    I think there is a--different States, I think there are 
some, like you look at New York, New Jersey, some of these 
States spend a great deal of money on the death penalty. They 
don't have one execution to show for it, New York after ten 
years, New Jersey since 1983, your State, 10 years of the death 
penalty, eight people, 100 death sentences, nobody executed. It 
is an awful lot of time and money without much at the end, and 
it does have, I think, an effect on the other cases.
    Then there are those cases--or States, excuse me, 
jurisdictions, where people are not being--I was a court-
appointed lawyer, too, by the way, for a long time. There are 
good and bad court-appointed lawyers. But if you have court-
appointed lawyers with high caseloads, low pay, lack of 
resources, you are going to get what you pay for, and we have 
that.
    And we have had, like in Texas, for example, there have 
been four people who got executed without any State or Federal 
review of their case, post-conviction review, because the 
lawyers didn't even know that there was a statute of 
limitations, so they missed the statute of limitations. That is 
pretty bad lawyering. I mean, a medical malpractice case, I 
mean, just about any kind of case, you should know the statute 
of limitations, and yet those people weren't even aware that 
they existed. So that is not good lawyering, and unfortunately, 
there is a lot of that in these cases.
    Chairman Brownback. Senator Feingold?
    Senator Feingold. Mr. Chairman, before I start, Professor 
McAdams shared his views on the exoneree list maintained by the 
Death Penalty Information Center. I think it would be 
appropriate, if it is acceptable to you, to allow the Center to 
provide a written statement in response to his testimony for 
the record of this hearing, if there is no objection.
    Chairman Brownback. To what?
    Senator Feingold. To allow them to write a written 
statement in response to his comments.
    Chairman Brownback. I have no objection.
    Senator Feingold. Thank you, Mr. Chairman.
    Mr. Bright, I was also struck by the Birmingham News 
editorial that you submitted with your testimony that you 
mentioned in which the newspaper announced it was changing 
sides in the debate on capital punishment and could no longer 
support the death penalty. Another thing that the editorial 
said is, quote, ``it is better to be rich and guilty than 
innocent and poor,'' unquote, and you touched on these issues a 
bit in your statement, but I would like you to talk a little 
bit more about how a criminal defendants' economic situation 
affects his access to justice in our system.
    Mr. Bright. Thank you, Senator. yes, and I would say 
Alabama is a classic example of what I was talking to the 
Chairman about in terms of quality of lawyering. There is no 
Capital Defender Office in Alabama. In fact, there are almost 
no Public Defender Offices in Alabama. Most people who are 
facing the death penalty there, and this is not just Alabama, 
in a number of other States, as well, are going to be assigned 
a lawyer who may, as in the example I gave, be a lawyer who 
specializes in something other than criminal law, has no idea 
how to try a death penalty case.
    We operate on this fiction that any lawyer can try a death 
penalty case, that we can appoint a lawyer and they can try the 
case, which is sort of like saying any chiropractor can do 
brain surgery, because many of the lawyers are acting in good 
faith, they are doing the best that they can, they just simply 
don't know what they are doing because it is not what they do. 
They do divorces and title searches and those kinds of things. 
The old adage, you get what you pay for, I think is very true 
here.
    The other point that I would make is just resources. Back 
in the old days, it may have been we didn't need a lot of 
expert witnesses, forensic witnesses, that sort of thing. That 
is not true today, particularly in homicide cases. The defense 
needs resources.
    Georgia put to death a man last year whose lawyer was 
appointed 36 days before trial and not given a penny. Thirty-6 
days later, the case goes to trial. This lawyer is totally 
unprepared. The client is sentenced to death, and he was put 
down, tied down and put down last year. That is simply not 
justice under any stretch of the imagination, no matter how 
conscientious the lawyer was. I know that lawyer. He didn't 
want to do a bad job. He couldn't do a good job in those 
circumstances.
    Senator Feingold. Thank you. Professor Fagan, I would like 
to explore your testimony about the alternative of life without 
parole. You mentioned the recent studies arguing that capital 
punishment has a deterrent effect do not take into account the 
possibility of life without parole. If the studies do not 
account for the possible deterrent effect of life without 
parole, how can they accurately predict the deterrent effect of 
capital punishment?
    Mr. Fagan. Well, the question of predicting deterrence 
itself is a difficult question. One of the very hard things to 
do in deterrence research is to actually show that the 
perceived risk of a defendant is actually internalized, that 
that person has seen it, they have weighed the consequences, 
that it factors into their decisions.
    Many of the homicides that do occur, even if somebody is 
cognizant of the risks, are the kinds of homicides that occur 
that, first of all, might never be subject to a felony murder 
rule and would be punishable, but certainly would be the kinds 
where the arousal of the situation with the context, a crime of 
passion, for example, would neutralize whatever perceived or 
internalized risk there is.
    I think it is very hard to study that kind of risk. I think 
that it is a black box that is often inferred by the kinds of 
research that I do and also Professor Rubin does. Very rarely 
are there direct tests of deterrence. Very rarely is there a 
connection made between the perceived risk that the defendant 
expresses and their future behavior. This can be done in 
artifactual settings that don't approximate the kinds of 
situations where homicides tend to take place. We can show this 
in laboratory studies and the like.
    We are involved in a study now in Chicago, though, where 
there actually is a very direct test of deterrence involving 
gun offenders. This is through the Department of Justice 
Project Safe Neighborhoods study, and in Chicago, they actually 
get all the gun offenders together and put them in a room and 
they give them two messages. One, if we catch you with a gun, 
we are going to put you away in prison for 10 years or more. 
Two, if you need help, we are here to give you help. The room 
is packed with both probation officers, but also service 
providers. We are in the process now of doing a survey of the 
defendants to ask them about this perceived threat, because the 
numbers are saying very clearly that there is a dramatic 
decline in all manner of gun violence in the neighborhoods 
where the project is in effect.
    Our studies suggest that where there is a direct measure of 
deterrence, where the offenders do express that they have been 
exposed to that deterrent threat, that there is some 
consequence for their behavior. But we have it--this is not 
homicide, of course, but we do have some sense that that is the 
case. We don't have this sense in capital punishment. It is 
extremely hard to do.
    It is extremely hard to do with the LWOP sentences, and I 
wanted to respond to one comment from Professor Rubin. In the 
States where both execution and life without parole are 
available, we don't know the effects of life without parole 
because it is extremely hard to count the number of sentences. 
In my testimony, I give some evidence from Pennsylvania, 
California, a number of other States, about the relative 
magnitude of people on death row compared to the number of 
people incarcerated for life without parole and it runs 
anywhere from six to ten to one. But we don't--we can't, 
because we can't get an accurate count over a long time period 
of using the kinds of panel studies that I do and Professor 
Rubin does that allow us to take that factor into account. So 
it is a missing factor.
    It is like trying to evaluate the Steelers as a team 
without taking into account their defense and just gauging them 
on how well their offense is doing. I think we need to know 
what happens on both sides of the football.
    Senator Feingold. A timely analogy.
    Let me followup. Professor Fagan, you testimony also 
explained that the States and local communities pay a higher 
financial price when an individual is sentenced to death rather 
than life without parole. Obviously, some people may find that 
counterintuitive. Could you say a little bit more why capital 
cases do cost so much more?
    Mr. Fagan. Well, I would actually hope that Mr. Bright 
would help me on this. In our studies, we have looked--we have 
been reading the literature. These were studies done, and there 
was a very comprehensive study done in Florida where they went 
to each of the county offices and asked them about their 
allocation of resources for capital cases and they came up with 
some very strong numbers based on a sample of counties in 
Florida.
    We looked at the expenditures in New York State in the 
Capital Defender Office, which was funded at a very high level 
of competence and with a very high standard for effective 
counsel when New York's death penalty law went into effect in 
1995 and we looked at the expenditures there. And so we got a 
pretty good bounding, an upper and a lower bounding of the cost 
estimates that are involved, and to meet constitutional 
standards for defense, competent counsel, full access to 
testing, and so on, and for prosecutors to pursue the same set 
of standards, to prove beyond a reasonable doubt, requires a 
great deal of resources. These are resources that run--the 
numbers speak to themselves. They are fairly high.
    And in small counties--there was a very interesting article 
in the Houston Chronicle very recently about how the local 
prosecutor was bragging about the fact that he had almost 
unlimited access to public funds to pursue prosecutions. That 
is not the case in most counties and most counties have to make 
very difficult tradeoffs between schools, hospitals, 
infrastructure of all manner, and public defender services and 
prosecution services in these cases. The risks are then spread 
around the State often because the county can't afford it. They 
have to go to the State legislature or to other pools. And so 
somebody in a remote county that is maybe the other side of the 
State is paying for prosecution of somebody in the other corner 
of the State and that prosecution may or may not turn out to be 
effective and that prosecution may or may not turn out to be 
reversed, and we find fairly high reversal rates that are 
fairly consistent.
    Again, it is a choice. It is a choice about how to use 
public resources and what the consequences and outcomes of 
those choices are. In our case, we seem to think that you can 
achieve the same deterrent effect--or we certainly think that 
the deterrent effects are at least as great by long-term 
incarceration via LWOP at a far reduced cost.
    Senator Feingold. I am glad you made the point about all 
government costs obviously involve tradeoffs. Just specifically 
from a public safety perspective, the extra dollars that the 
capital cases cost could perhaps be spent otherwise on 
additional police officers and other ways to prevent some 
horrible crime from being committed in the first place. That is 
one way we can look at this.
    Mr. Fagan. When Professor Liebman and I did our study, it 
was fairly clear that the States that use the death penalty the 
most are the States that seem to have the most inefficient 
criminal justice systems. Where States have fairly effective 
clearance rates, where the number of arrests per crime is 
fairly high, where the number of prosecutions per crime is 
fairly high, then those States use the death penalty in violent 
cases and in murders far less often than do States where the 
clearance rates are very low.
    We tended to see capital punishment, therefore, as a 
compensatory system which was adjusting for the effects of 
essentially a weak law enforcement and prosecution system. It 
is a whole lot cheaper to make investments in a law enforcement 
system that would benefit not just people who were possibly at 
risk for homicide, but robbery, burglary, car theft, and many 
other serious crimes.
    Senator Feingold. Mr. Chairman, my time is almost up in 
this round. I will have a few more later.
    Chairman Brownback. OK. I just have a couple here.
    Mr. Rubin, I want to ask you an off-the-wall question. I am 
struck by the economic analysis of the death penalty, or, I 
mean, using that framework. I am used to monetary signals being 
sent and people reacting to monetary signals, and so when you 
send punishment signals, it sounds like the same sort of 
models. It strikes me as a little odd, but I understand it, and 
apparently there are some pretty good rationale and basis for 
being able to use that.
    One of the things that I cited in my opening and one of the 
things that has been most--that I have had the most 
intellectual pursuit as far as just internally on this is that 
I desperately believe we need to establish a culture of life in 
this country, that we really need to celebrate life. Senator 
Feingold and I have been in spirited debates on what this 
actually means on one end of the spectrum, on purely innocent 
life but at very early stages, obviously, the issue of 
abortion.
    And yet we talk about it then on this stage of life and the 
same discussion and debate enters in then, too, about culture 
of life and what many would refer to. Well, now this is not 
purely innocent life as that in the womb. This is a life that 
in all probability has committed a heinous crime, so people 
raise that question in the debate about you really can't 
compare these two.
    But could you construct in a sort of economic analysis 
about whether this does help to establish a culture of life, 
that celebrates life, if you don't have a death penalty? Is it 
somehow translatable within the culture writ large or into a 
narrower State or into a community that you could construct 
that, because that debate is made, and I am familiar with it 
from a mental sense, a moral sense, a spiritual sense, but what 
about from a modeling sense that you work in?
    Mr. Rubin. Well, it is getting a bit far from my work as an 
economist, but I think two things you might say. One would be 
that if there is a deterrent effect and if it is significant 
and if you are net saving lives, then the capital punishment 
will be consistent with a culture of life in that sense. There 
was a recent paper in the Stanford Law Review by Professor Cass 
Sunstein and Adrian Vermeule. Professor Sunstein is in Chicago 
and is not known as a conservative, but they were saying the 
same thing, that if there is deterrence, if there is evidence 
of deterrence, then as a society we might have a moral 
obligation to undertake capital punishment. So they were making 
that kind of argument, not at all from a conservative position 
but just saying, if these studies are correct, then we would 
have to really consider that.
    I guess one could also argue that if you say we treat life 
as being so valuable and that we are going to punish people who 
take life, that could also be, in my mind, consistent with a 
culture of life. But I would be more comfortable with the 
deterrence argument. If, net, you are saying move lives than 
you are losing, then it seems to me it is consistent with a 
culture of life.
    Mr. Bright. Could I offer this in response to that, Mr. 
Chairman?
    Chairman Brownback. Yes.
    Mr. Bright. To really have a deterrent effect, I mean, we 
have had an average of 33 death sentences a year in these 30 
years. A lot of people think we impose the death penalty all 
the time. It is actually 1 percent of the murders in this 
country are punished with death. If we are going to have a 
deterrent effect, if we are going to stop 18 every time if this 
is true, which I don't for a reason I will tell you, we are 
going to have to have a culture of death. I mean, we are going 
to have to use the death penalty all the time because the 
people I have represented over the last 30 years and talked to, 
they are not watching television. They are not reading the 
newspaper. They are not paying any attention. Right now in 
Texas, they have shown that people in Huntsville don't even 
know when there is an execution taking place in their town.
    It would seem to me that any argument--I will let them 
fight about the statistics, but from a basic fundamental 
standpoint, you can't be deterred about something you don't 
know anything about. If you don't know that there has been an 
execution, you can't be deterred by the execution, and there 
are only five States that have executed more than 50 people and 
have carried out about 65 percent of all the executions in the 
country.
    So if that is really true, we would have to have New 
Hampshire and Kansas and all these other States just executing 
a lot of people in hopes that people out there would realize 
that they might get executed if they went there. But to figure 
that out, you would have to know, well, I am going to get 
caught, which nobody thinks they are. I am going to get not 
very good legal representation. I am going to get in one of 
those jurisdictions where the prosecutor seeks the death 
penalty, and make a lot of other considerations and 
calculations that most people that get arrested for murder 
don't make.
    Chairman Brownback. Yes, please, and then I am going to 
turn the microphone over to Senator Feingold. I don't know if 
you wanted to go down to the Alito swearing in or not.
    [Laughter.]
    Senator Feingold. I wished him well last night.
    Chairman Brownback. OK, then I am going to let you close 
the hearing on out after that. Dr. Rubin, you wanted a quick 
response.
    Mr. Rubin. Just one quick response. It is not too good to 
look for deterrence by questioning people who have committed 
the crime. Those are the people who were not deterred. The 
people who are deterred, if there are people deterred, are 
people who Mr. Bright would never see because they are people 
who have not committed the crime. So it is basically a flawed 
research method to go to criminals and say, ``Were you 
deterred?'' No, obviously not. It is the people who are not in 
jail, who did not commit the crimes, that were deterred and you 
won't see them.
    Mr. McAdams. Can I make one quick comment about a culture 
of life?
    Chairman Brownback. Yes.
    Mr. McAdams. I think it has got to be incoherent unless you 
distinguish between the innocents and the aggressors. When we 
and our allies invaded Europe in 1944, were we promoting a 
culture of life or were we contradicting a culture of life? In 
spite of the nastiness of any invasion and killing a lot of 
people, I think, ultimately, we were promoting a culture of 
life by taking out a Nazi regime that was completely--not only 
didn't care about life, but actually gloried in killing 
millions of Jews. So I think sometimes promoting a culture of 
life can involve some pretty nasty things we have to do, but I 
think we have to do it sometimes.
    Chairman Brownback. I would note that we will keep the 
record open for a period of 7 days that there may be a 
submission of additional questions to witnesses and other 
materials can be entered into the record.
    Senator Feingold?
    Senator Feingold. [Presiding.] Thank you, Mr. Chairman. I 
do thank you again for holding this excellent hearing. Just a 
couple more questions.
    Mr. Bright, let us talk just a bit about the difficulty 
individuals on death row can face in attempting to prove that 
they are innocent. Of course, many cases do not have DNA 
evidence that can definitely prove that a particular person is 
innocent or guilty, and I know there have been capital cases 
where new evidence is not unearthed until years after the 
conviction. In your work, have you experienced procedural 
barriers to bringing proof of innocence to the attention of a 
court, and how do we ensure that potentially exculpatory 
evidence can be brought to a court in a speedy manner?
    Mr. Bright. Well, those are the most troubling cases, 
Senator, where a person is convicted based on the evidence that 
is available. It may not be very strong evidence. It may be 
circumstantial evidence, but it is enough to get a conviction. 
And then years later, some other evidence comes along that 
undermines that and you don't go back to the jury and retry the 
case.
    There is a case before the Supreme Court right now where a 
man was convicted in Tennessee and part of the prosecution was 
there were semen stains on the gown of the victim and the 
prosecution argued to the jury in closing they were his. Well, 
now we know from DNA evidence beyond any question they were the 
husband's. They weren't his. Well, are we going to go back and 
give him a new trial? No. At least that is what the Sixth 
Circuit said. We are not going to even give him a hearing on 
whether or not he gets to have a new trial because of all the 
barriers that we have added now to habeas corpus review in this 
country.
    But I think that is not an unusual situation, that evidence 
comes to light later. The Schlup case in Missouri, where the 
fellow had been convicted and then right before he was to be 
executed, some guard in a moment of conscience said, ``Well, 
actually, there is a videotape that shows that this fellow was 
somewhere else in the prison at the time the murder went down, 
so you had better take a look at it.'' Now, that was just in 
the nick of time.
    The other part of it is that when you don't have DNA 
evidence--DNA evidence proves things generally, with a few 
qualifications, pretty conclusively. The troubling areas are 
the things like eyewitness identification. We know witnesses 
make a lot of mistakes, but everybody believes that they are 
100 percent right. Informants who are used in these cases who 
testify, trade their testimony for something else. 
Unfortunately, one of the reasons a lot of people end up on 
death row is they don't have anything to trade.
    This Rudolph guy who killed a person in Alabama, blew up 
the bomb at the Olympics, I mean, he could tell them where the 
dynamite was, so he gets a life sentence, which goes back to my 
point about this is not essential that we have this because if 
we did, we would sure give it to him. But he is serving a life 
sentence because he could trade something away, whereas some 
other people come along and they can't trade anything away, so 
they don't have that same opportunity.
    Senator Feingold. It is interesting you gave that first 
example because it was just that kind of example that I asked 
Judge Alito and could not get a good response to the issue of 
the rights of a person who is clearly innocent and the process 
has already run its course, and one of the reasons I couldn't 
support him and I am not going down to the swearing in. I 
certainly respect him, but it is a very troubling area.
    Professor, did you want to say something?
    Mr. Fagan. Yes. There has been much made about DNA evidence 
as possibly helping us sort out the guilty from the innocent on 
capital cases, but I think it is important to note in the over 
100 exonerations that have taken place from death row, a very 
small fraction of those are DNA exonerations.
    Senator Feingold. Yes.
    Mr. Fagan. Most of them are exonerations due to new 
witnesses, new evidence, recanting of testimony, and the like. 
So to say that DNA is going to solve the problem of innocence 
is, I think, misleading.
    Mr. McAdams. Senator, can I say something about this point?
    Senator Feingold. Go ahead, especially in light of your 
home State, as well.
    Mr. McAdams. Thank you. I do think the death penalty 
opponents have a bit of a double standard about eyewitness 
testimony. They are absolutely right that witnesses tend to 
over-value eyewitness testimony. It is much more frail than 
witnesses seem to believe. That is endemic to our system of 
jury trials at every level, death penalty and below. That is a 
good reason to see that, for example, defense counsel have 
access and can put on the stand expert witnesses about 
eyewitness testimony.
    However, the claims made by death penalty opponents about 
how somebody came forward years later to exculpate this 
particular person, or someone confessed, there are equal 
problems with that kind of testimony. I can name you one guy, 
for example, who has confessed to being the grassy knoll 
shooter in Dallas on November 22, 1963. He is in Statesville 
Prison in Illinois right now. Another young man confessed that 
his father was the grassy knoll shooter. Another woman I could 
name has confessed to being Lee Harvey Oswald's mistress in New 
Orleans in the summer of 1963. All three confessions, claims, 
are pretty obviously bogus.
    So the frailty of witness testimony not only applies at 
trial, and they are quite right about that, but it also applies 
to years later claims that this person has been exonerated 
because some witness changed their testimony or someone came 
forward and confessed.
    Senator Feingold. But it is only in death penalty cases 
where the frailty can lead to somebody being executed, right?
    Mr. McAdams. That is true, except I think there is a 
fundamental problem here in that we seem to be so transfixed 
with the death penalty that--well, for example, we are told, in 
effect, let us save a lot of money by not charging anybody with 
capital murder and let us just try to put them away for life. 
Again, some of the costs associated with the death penalty are 
dead weight loss, appeal after appeal after appeal, where you 
try to find a judge who will let your person off. As Professor 
Fagan has shown, if you go through enough judges, eventually, 
you are likely to find someone.
    Others, however, are expenditures that really have 
something to do with obtaining justice, and I talked about the 
Indiana case. If you are accused in Indiana of capital murder, 
you can hire two lawyers. They can bill the State by the hour. 
You have access to routine DNA testing. You have access to 
expert witnesses, et cetera. All of that expenditure actually 
tends to achieve justice.
    So what they are saying is let us save money by dumping 
what would be capital defendants back in a system where we can 
save a lot of money because they don't get nearly as much due 
process and nearly as good of defense, and that is what I think 
is wrong with that argument.
    Mr. Bright. Well, I don't think that is right by any--
    Senator Feingold. Your comment will be the last one. Go 
right ahead.
    Mr. Bright [continuing]. Stretch of the imagination. I just 
want to say this. Dr. McAdams has said twice now that the 
appeals are endless and are dead weight. Let me tell you, there 
are people who are alive today because Federal judges and the 
Supreme Court of the United States found on those appeals that 
they were sentenced to death in violation of the Constitution 
of the United States. How that is dead weight is beyond me.
    And the second thing I would say is with regard to people 
coming forward, generally what happens is a lawyer comes 
forward and then finds the witness and brings into the equation 
the people that should have been there to begin with, and that 
is where you have the question of what kind of representation 
do they get at trial and now what is available here and how do 
you put those two together to try to figure out what happened.
    Thank you very much, Senator.
    Senator Feingold. Thank you. On behalf of the Chairman and 
myself and the Committee, we want to thank all of you very much 
for your testimony. It was an excellent panel.
    This concludes the hearing.
    [Whereupon, at 3:25 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.]
    [Additional material is being retained in the Committee 
files.]

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