Moratorium rightfully positions death penalty in court spotlight

The controversial, flawed death penalty is fortunately being discussed in Pennsylvania.

Kevin Trainer

Kevin TrainerThe thing about prisons, so I’m told, is that there are locks on the door and they won’t let you out. Such is the truth for an increasingly large number of men and women here in the state, where the number of new prisons continue to rise, quite certainly with the hope that they’ll someday be filled. This is the truth for the 186 Pennsylvanians now sitting on death row, their lives long since signed away by the state, but who remain caged in an ever-shrinking cell. Locks become straps; a gurney for your bed.

This chapter began last month when then-Gov. Corbett, in one of his last official actions before leaving office, signed the death warrants for five Pennsylvania inmates. These warrants are the legal actions required to effectuate a trial court’s decision to sentence an individual to death. One warrant was for Terrance Williams.

In 1984, Williams, then-18 and a freshman at Cheyney University, robbed and beat a man to death with a wrench and tire iron. The victim was Amos Norwood, who, Williams said, had sexually molested him since he was 15. Williams left Norwood’s body between two tombstones in a Mount Airy cemetery, only to return the next day to set it on fire. The murder was Williams’ second. As such, he was sentenced to death.

Since then, Williams’ case, like those for many on death row, has pinballed between courts, appeal after exhaustive appeal, supposedly and finally ending with the stroke of Corbett’s pen. Williams was scheduled to die on March 4.

But, on Feb. 13, things changed. Gov. Wolf, just one month into office and wielding mountains of political capital, announced a moratorium on all state executions and also a reprieve for Williams. Wolf based his power on Article IV of the Pennsylvania Constitution, which states in relevant part that “[i]n all criminal cases … the Governor shall have the power … to grant reprieves [and] commutation of sentences and pardons…”

In addition to this constitutional power, Wolf, in a press release announcing his decision, contended that the death penalty is “error prone, expensive and anything but infallible.”

Temple Law Professor Anthony Bocchino, was more to the point: “I am very happy about the moratorium.”

Not all agree. Philadelphia District Attorney Seth Williams, also a Democrat, has petitioned the state Supreme Court to rule on the controversy. In the petition, Williams claims that Wolf’s unilateral act was “flagrantly unconstitutional, and should be declared … to be null, void, and absolutely without legal effect.” The Pennsylvania Supreme Court has agreed to hear the case but no schedule for a decision has been released.

Well, then, who’s right?

The case for the death penalty – at least at first approximation and in a strictly economic sense – is straight-forward: Does one state execution here deter more than one murder over there? This has long been the critical, if incomplete, question illuminating the debate. And, for basically as long as the question has been so posed, the answer has been “maybe.”

The debate began in earnest in 1975 when the economist Isaac Ehrlich, then at the University of Chicago, published a study concluding that during the 1950s and 1960s, each state execution prevented about eight murders. And although Ehrlich’s paper was highly technical, and despite his conclusions being challenged by many, including a panel of experts assembled by the National Academy of Sciences, politicians and pro-death penalty groups latched onto Ehrlich’s bottom-line as the justification they so desperately craved.

More recent evidence supports Ehrlich’s early views. The Emory economist Hashem Dezhbakhsh, in a study published in the American Law and Economics Review, has concluded that capital punishment not only has a deterrent effect, but one even stronger than Ehrlich’s early finding. Dezhbakhsh’s study concluded that each execution prevents 18 murders, on average. Many other recent studies support a figure in that range.

But just as in the 1970s, for each new study concluding that the deterrent effect is real and substantial, there have been just as many seriously questioning those results, leaving the debate on wholly unstable terrain.

And even if, arguendo, we could properly ascertain the deterrent effect, an essential question persists: what place, if any, does cost-benefit analysis have in questions of life or state-sanctioned death?

“I am unimpressed with the Dezhbakhsh putative study as with most of the law and economics movement pronouncements that result from making the appropriate or inappropriate assumptions to which economic theories are applied,” Bocchino said.

Bocchino added that he’s not even convinced that Dezhbakhsh’s result is even empirically correct. To Bocchino, not only is the answer to the cost-benefit question probably no, it proceeds from a seriously flawed premise. “Even if the cost-benefit analysis is as valid as a matter of economic theory, it should be irrelevant as to whether the death penalty should be utilized.”

But assume, for a moment, a cost-benefit framework. And suppose the deterrent effect is substantially greater than one-to-one. Why wouldn’t the death penalty be morally allowable or, more radically, morally required? In that case, the choice would not be life or death – should we spare the criminal’s life or not – but should we spare the criminal’s life at the expense of the lives of several presumptively innocent people.

Bocchino identifies an important flaw in this argument, that of error.

“Cost-benefit analysis always has an error rate. In the case of the death penalty the error rate results in killing innocent – or at least not guilty – people. One error is too many.”

But this reasoning is circular. Bocchino is certainly correct that the death penalty is subject to error and innocent people have been put to death. But from that premise we don’t so easily arrive at the position of total outlaw. Unless we reject the cost-benefit framework, the execution of an innocent at the hands of the state needs to be compared to the murders of the innocents not prevented by the execution at the hands of the state.

Lurking in the background of this line of the cost-benefit argument is the unexplored assumption that the state’s “act” of imposing death is functionally equivalent to the state’s failure to prevent a murder through the “omission” of that act.

I am not a moralist, but the distinction between a state’s act and a state’s omission seems relevant. The state, for example, engages in countless omissions that continually threaten people’s lives: greenhouse gases are regulated but not outlawed; speed limits on the highway are not that slow; homeless people remain on the street even when the temperature dips far below freezing.

A government not doing something that could save a life is not an “omission” or “failure to act” in any meaningful sense. It is simply a reflection of democratic choices.

Which returns the story to Pennsylvania.

In reflecting on the debate, I am reminded of Telford Taylor’s great memoir, “The Anatomy of the Nuremberg Trials.” Taylor, who served as our country’s chief prosecutor during the trials, recalled writing to his then-boss Justice Robert Jackson, who was on leave from the Supreme Court to serve as the United States’ Chief of Counsel, that the “thing we want to accomplish” – successfully prosecuting Nazi war criminals – “is not a legal thing but a political thing.”

Such is the case here. Gov. Wolf promised a moratorium on the death penalty during his campaign and the people of this state overwhelmingly approved that campaign. Now, Wolf is acting on that mandate. Wolf does not fear the death penalty going before the State Supreme Court; he wants it there. He wants it there because the same constituents who elected him to office in November elect the justices to that court. He wants it there because the voters in more and more states have decided that capital punishment is both cruel and unusual. And he wants it there ultimately because courts, quite unlike politicians, must decide.

For Wolf, the immediate answer may not turn in his favor. But like Taylor, the thing Wolf wants to accomplish is not a legal thing, but a political thing. And sometimes politics take a while. Until then, Terrance Williams remains in his cell.

Kevin Trainer can be reached at

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