A Federal Capital Case in New Jersey & the Deterrence Argument - UPDATED

Does the death penalty deter?  Lawmakers opposing repeal measures in legislatures across the country this year often expressed their belief that the death penalty is a deterrent.

Cass Sunstein and Justin Wolfers were quite clear in their OpEd,"The Murky Evidence for and Against Deterrence," that appeared in the June 30, 2008 issue of the Washington Post, and noted here.

In short, the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.

That didn't stop a New Mexico district attorney from misstating Sunstein's view during the repeal debate in that state earlier this year.

For those who want to dive deep into the statistics and empirical studies, there is no better authority on deterrence than Columbia Law prof Jeffrey Fagan.  A small sample can be found in this post; much more at his SSRN page.

Even the general public has concluded deterrence is a myth.  Since 1999, according to the Harris Poll, only a minority of those surveyed have believed that the death penalty deters.

And then there is the anecdotal evidence.  The most recent example appears in Thursday's New York Times: "Lawyer's Ways Spelled Murder, U.S. Is Charging," written by David Kocieniewsky.

He spent a decade as a top prosecutor, trying murder cases in New Jersey, drug cases in federal court and a wide range of offenses in the military justice system.

He went on to become one of the state’s most prominent defense lawyers, representing clients as varied as Abu Ghraib defendants, the rap stars Lil’ Kim and Queen Latifah and members of Newark’s notorious street gangs.

But federal authorities charged Wednesday that the success their former colleague, Paul Bergrin, had in defending drug dealers and gang leaders was based on a brutal calculus that he had boiled down to a phrase he repeated like a slogan: No witnesses, no case.

In an indictment unsealed on Wednesday in United States District Court in Newark, prosecutors accused Mr. Bergrin, 53, of orchestrating the murder of a confidential witness by leaking his name to drug dealers who shot him in broad daylight on a Newark street corner; of traveling to Chicago to hire a murderer to kill a witness in another case; of coaching some eyewitnesses to lie; and of paying others to change their stories or leave town on the day they were to testify.

The charges, which left Mr. Bergrin in federal custody and facing a possible death penalty, were a stunning development for a flamboyant man who owned a Mercedes and a Bentley, hobnobbed with movie stars and boasted of beach homes in New Jersey and the Caribbean.

Bergrin is far from the first law enforcement official to be accused of capital murder.  If those closest to the law -- those who fully understand the elements of a crime that can lead to a death penalty prosecution -- are not deterred just who is?

Let's give Mr. Bergrin the presumption of innocence, but death rows and execution chambers have seen others in law enforcement convicted, condemned, and undeterred.

Let me update with two comments from Jeffrey Fagan:

One is the evidence that not only does the death penalty not deter, but that when we isolate the cases that are death-eligible, we still find no evidence of deterrence, even in places like Harris County, which generates plenty of executions. 

Second, the overwhelming weight of the scientific data is that there may or may not be deterrence, but that the evidence is so fragile and inconclusive - with studies pointing in all directions - that we cannot morally justify the decision to take lives based on it.