The jury is still out

Senator Tito Sotto’s proposal to reinstitute the death penalty is premised on his claim that the crime rate in the Philippines has increased. That apparently is inaccurate, at least concerning the heinous crimes for which the death penalty is proposed. Senior Superintendent William Macavinta showed me the data for these crimes, and they show a decrease from 2012 to 2013 (they increased from 2009 to 2012).

Now, since the premise on which his proposal is based is wrong, doesn’t that mean that Sotto should withdraw his proposal?  Not from any indications, so we have to go through the motions of considering the pros and cons of the death penalty once more. (We discussed this when Fidel Ramos reinstituted the death penalty in 1993, and then again, at various times, during the Estrada and Arroyo administrations, so I guess P-Noy should have his shot at it.) Not to worry. If this means we are beating a dead horse, the consolation is that the controversy remains alive, at least in the United States.

The reasons for imposing a death penalty are: 1) to deter future crime by others (this is Sotto’s main argument), and 2) to deter future crime by the offender himself. Let’s take them one by one.

What does the evidence say about the deterrent effect of the death penalty? I was impressed with the work done by economists Hashem Dezhbash, Paul Rubin and Joanna Shepherd (American Law and Economics Review 2003), and H. Naci Mocan and R. Kaj Gittings (Journal of Law and Economics, October 2003).  They used econometrics to compare the number of executions in different jurisdictions with homicide rates over time (two decades, 3,054 counties in one study), while trying to eliminate the effects of crime rates, the effectiveness of the criminal justice system, economic conditions and demographic changes.

Conclusion: Murder rates tend to fall as executions rise. The first study estimates that for each execution, 3 to 18 murders are prevented; the second found that each execution saves five lives. The coefficients are statistically significant, the results are robust.

The controversy is joined by law professors from the University of Chicago and Harvard University, as well as the University of California, Berkeley, University of Pennsylvania and Stanford University. If you think there is unanimity, you’ve got another think coming. Comments go from “the recent evidence of a deterrent effect from capital punishment seems impressive” to “it seems unlikely that any study based only on recent US data can find a reliable link between homicide and execution rates.”

Is there no resolution? Well, even after 35 years, the jury is still out. In “Deterrence and the Death Penalty” (Nagin and Pepper, editors, Committee on Deterrence and the Death Penalty; Committee on Law and Justice; Division on Behavioral and Social Sciences and Education; National Research Council), the finding is that the research that has taken place is fundamentally flawed. One major deficiency is that none comes up with a comparison of the effect of “non-capital sanctions” (e.g., life imprisonment) to find out what the difference is. In other words, from what I understand, does life imprisonment have a deterrent effect?  How does it differ from capital punishment?

But the authors cover themselves: Just because they found no studies supporting a deterrent effect from capital punishment for murders doesn’t mean that one doesn’t exist. “Deterrence is but one of many considerations relevant to deciding whether the death penalty is good public policy.”

But assuming that there is a deterrent effect, should the death penalty be reinstated? I agree with P-Noy and Etta Rosales. It would be insane to do it until we correct the flaws in our criminal justice system. Only consider: How will the death penalty deter future crime if the offenders are not brought to justice?  They are not caught, or their lawyers delay the process interminably, and if push comes to shove, they can always buy a decision. That is, if they have the money. That means capital punishment is going to hurt the poor, who do not have the money. Most of the convicted inmates in Muntinlupa, according to a Free Legal Assistance Group survey conducted in 2005, showed that they had very little consultations with lawyers, so one can imagine what kind of justice they received.

The Innocence Project, in the United States, successfully exonerated 140 death row inmates on reexamination of evidence.  What would such an effort accomplish over here?  And more importantly, if the death penalty were reinstituted, these people would be dead meat.

Remember the saying: We would rather have 10 guilty men go free than one innocent man get convicted. Well, imposing the death penalty again would result in 10 guilty men going free and  100 innocent men convicted.  Not exactly the justice that everyone is talking about.

So the last question is: Have there been efforts to correct the flaws in the criminal justice system?  Alas, few and far between, it would seem. The “wheel of torture” has sent the Philippine National Police scurrying to correct or punish its men. But the Department of Justice prosecutors and the Public Attorney’s Office lawyers are overworked, so unwittingly they contribute to the delay in justice. The Supreme Court is trying to do its part by trying to discipline its judges (alas, they don’t seem to want to discipline themselves).  And we still haven’t heard from the Integrated Bar of the Philippines on its effort, if any, to discipline its lawyers who seem to take on more work than they can handle, and contribute to the problem.