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29–599 PDF 2006

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

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

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 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

RUSSELL D. FEINGOLD, Wisconsin 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

AJIT PAI, Majority Chief Counsel 

ROBERT F. SCHIFF, Democratic Chief Counsel 

(III)

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

(1)

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. 

2

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 

3

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, anVerDate 0ct 09 2002 11:20 Aug 28, 2006 Jkt 029599 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29599.TXT SJUD4 PsN: CMORC
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other 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 

5

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. 

6

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, 

7

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. 

8

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 daughVerDate 0ct 09 2002 11:20 Aug 28, 2006 Jkt 029599 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29599.TXT SJUD4 PsN: CMORC
9

ter, 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 acVerDate 0ct 09 2002 11:20 Aug 28, 2006 Jkt 029599 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29599.TXT SJUD4 PsN: CMORC
10

cepted 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 

11

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? 

12

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. 

13

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? 

14

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 

15

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 onehalf 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 backalley 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, 

16

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. 

17

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. 

18

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 penVerDate 0ct 09 2002 11:20 Aug 28, 2006 Jkt 029599 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29599.TXT SJUD4 PsN: CMORC
19

alty. 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 coauthor 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. 

20

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. 

21

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. 

22

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. 

23

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 ofVerDate 0ct 09 2002 11:20 Aug 28, 2006 Jkt 029599 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29599.TXT SJUD4 PsN: CMORC
24

fered. 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 

25

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. 

26

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. 

27

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 OfVerDate 0ct 09 2002 11:20 Aug 28, 2006 Jkt 029599 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29599.TXT SJUD4 PsN: CMORC
28

fice 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. 

29

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 

30

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 

31

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 

32

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 addiVerDate 0ct 09 2002 11:20 Aug 28, 2006 Jkt 029599 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29599.TXT SJUD4 PsN: CMORC
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tional 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. 

34

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. 

35

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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