Converge

APRIL 2013

NICK D’ASIOLI Millionaire at 17

3 Parents – 1 Child New Medicine Saving Childrens’ Lives

An Unexpected Trip To

Death Row The Extensive Case of ANTHONY GRAVES

FEATURES MARCH 2013 12 innocence lost Anthony Graves was on death row for ten years for a crime he didn’t commit. A class of law students come to his aid.

By Pamela Collof

18 capital punishment Professor Jeff Fagan brings up the current issues surrounding our system of capital punishment within the United States.

By Jeff Fagan

26 desparity by design Musicians under the name Rise Against support public activism and the general improvement of society, I guess.

By Timothy Mcllrath

32 the constant Alternative group Oh No Fiasco (formerly The Few) finished their tour alongside The Dirty Heads, MIDI Matilda, and Shiny Toy Guns.

By Linsdey Stamey

Cover and contents photo by dimitri_c

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DEPARTMENTS MARCH 2013

off the press

food for thought

moving forward

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millionaire at 17 danger in boston internet for all

one child. three parents. an end to the curve on the fast track

the fear of change rethinking technology coming together

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14 Photography by Vivek Chugh (top left), Lonnie Bradley (bottom left), Christa Richert (right)

off the press

Millionaire at One of Yahoo’s newest employees is a 17-year-old high school student in Britain. As of Monday, he is one of its richest, too.

That student, Nick D’Aloisio, a programming whiz who wasn’t even born when Yahoo was founded in 1994, sold his news-reading app, Summly, to the company on Monday for a sum said to be in the tens of millions of dollars. Yahoo said it would incorporate his algorithmic invention, which takes long-form stories and shortens them for readers using smartphones, in its own mobile apps, with Mr. D’Aloisio’s help.

Photo by Suzanne Plunkett

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Mr. D’Aloisio, who declined to comment on the price paid by Yahoo (the technology news site AllThingsD pegged the purchase price at about $30 million), was Summly’s largest shareholder.

Summly’s other investors, improbably enough, included Wendi Murdoch, Ashton Kutcher and Yoko Ono. The most important one was Li Ka-shing, the Hong Kong billionaire, whose investment fund supported Mr. D’Aloisio’s idea early on, before it was even called Summly.

The fund read about Mr. D’Aloisio’s early-stage app on TechCrunch, the Silicon Valley blog of record, found his e-mail address and startled him with a message expressing interest.

The others signed up later. “Because it was my first time around, people just wanted to help,” he said.

For teenagers who fancy themselves entrepreneurs — and their parents, too — the news of the sale conjured up some feelings of inadequacy, but also awe. For Brian Wong, the 21-year-old founder of Kiip, a mobile rewards company, the reaction was downright laughable: “I feel old!”

A few years ago, Mr. Wong was described in the news media as the youngest person ever to receive venture capital funding. But a couple of younger founders came along — “and then Nick broke all of our records,” Mr. Wong said on

Monday.

Among the attributes that helped Mr. D’Aloisio, he said, was a preternatural ability to articulate exactly what he wanted Summly to be.

“There were no umms, no uhhs, no hesitations, no insecurities,” Mr. Wong said.

Mr. D’Aloisio, for his part, sounded somewhat uninterested in answering questions about his age on Monday. He acknowledged that it was an advantage in some pitch meetings, and certainly in the news media, “but so was the strength of the idea.” He was more eager to talk about his new employer, Yahoo, which is trying to reinvent itself as a mobile-first technology company (having dropped the digital media tagline it used before Marissa Mayer became chief executive last year).

“People are kind of underestimating how powerful it’s going to become and how much opportunity is there,” he said.

Mr. D’Aloisio’s father, who works at Morgan Stanley, and his mother, a lawyer, had no special knowledge of technology. But they nurtured their son’s fascination with it and he started coding at age 12. Eventually he decided to develop an app with what he calls an “automatic summarization algorithm,” one that “can take pre-existing long-form content and summarize it.” In other words, it tries to solve a problem that is often summed up with the abbreviation tl;dr: “too long; didn’t read.”

Summly officially came online last November. By December, Mr. D’Aloisio was talking to Yahoo and other suitors.

Yahoo said in a statement that while the Summly app would be shut down, “we will acquire the technology and you’ll see it come to life throughout Yahoo’s mobile experiences soon.”

food for thought

One Child.

Three Parents.

A new technique has been introduced to cure potentially fatal Mitochondrial diseases that may change a child’s DNA.

By James Gallagher A public consultation has been launched to discuss the ethics of using three people to create one baby. The technique could be used to prevent debilitating and fatal “mitochondrial” diseases, which are passed down only from mother to child. However, the resulting baby would contain genetic information from three people - two parents and a donor woman.

Ministers could change the law to make the technique legal after the results of the consultation are known.

About one in 200 children are born with faulty mitochondria - the tiny power stations which provide energy to every cell in the body. Most show little or no symptoms, but in the severest cases the cells of the body are starved of energy. It can lead to muscle weakness, blindness, heart failure and in some cases can be fatal.

Mitochondria are passed on from the mother’s egg to the child - the father does not pass on mitochondria through his sperm. The idea 8

to prevent this is to add a healthy woman’s mitochondria into the mix.

Two main techniques have been shown to work in the laboratory, by using a donor embryo or a donor egg. However, mitochondria contain their own genes in their own set of DNA. It means any babies produced would contain genetic material from three people. The vast majority would come from the mother and father, but also mitochondrial DNA from the donor woman.

This would be a permanent form of genetic modification, which would be passed down through the generations. It is one of the ethical considerations which will be discussed as part of the Human Fertilisation and Embryology Authority’s consultation.

The chair of the organisation, Prof Lisa Jardine, said: “It is genetic modification of the egg - that is uncharted territory. Once we have genetic modification we have to be sure we are damn happy.”

It is not the first time these issues have been discussed. A report by

the Nuffield Council on Bioethics said the treatment was ethically OK, but the group Human Genetics Alert said the procedure was unnecessary, dangerous and set a precedent for genetically modified designer babies.

The consultation will run until 7 December and the conclusions will be presented to ministers next spring.

Research into the area is legal in the UK, but it cannot be used in patients. However, treatments in IVF clinics will be years away even if the public and ministers decide the techniques should go ahead. There are still questions around safety which need to be addressed.

One of the pioneers of the methods, Prof Mary Herbert from Newcastle University, said: “We are now undertaking experiments to test the safety and efficacy of the new techniques.

“This work may take three to five years to complete.”

Photo by Emmanuel Garcia

moving forward

Debate Continues in the Supreme Court on Same-Sex Marriage

As the arguments unfurled in Tuesday’s case on same-sex marriage, the Supreme Court justices sounded more and more cranky. Things were moving too fast for them.

By Maureen Dowd How could the nine, cloistered-

behind velvety rose curtains, marble pillars and archaic customs, possibly assess the potential effects of gay marriage? They’re not psychics, after all.

“Same-sex marriage is very new,” Justice Samuel Alito whinged, noting that “it may turn out to be a good thing; it may turn out not to be a good thing.” If the standard is that marriage always has to be “a good thing,” would heterosexuals pass?

“But you want us to step in and render a decision,” Alito continued, “based on an assessment of the effects of this institution, which is newer than cellphones or the Internet? I mean, we do not have the ability to see the future.”

Swing Justice Anthony Kennedy

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grumbled about “uncharted waters,” and the fuddy-duddies seemed to be looking for excuses not to make a sweeping ruling.

Their questions reflected a unanimous craven impulse: How do we get out of this? This court is plenty bold imposing bad decisions on the country, like anointing W. president or allowing unlimited money to flow covertly into campaigns. But given a chance to make a bold decision putting them on the right, and popular, side of history, they squirm.

“Same-sex couples have every other right,” Chief Justice John Roberts said, sounding inane for a big brain.

“It’s just about the label in this case.” He continued, “If you tell a child that somebody has to be their

friend, I suppose you can force the child to say, ‘This is my friend,’ but it changes the definition of what it means to be a friend.”

Donald Verrilli Jr., the U.S. solicitor general arguing on the side of same-sex marriage, told the justices, “There is a cost to waiting.”

He recalled that the argument by opponents of interracial marriage in Loving v. Virginia in 1967 was to delay because “the social science is still uncertain about how biracial children will fare in this world.”

The wisdom of the Warren

court is reflected two miles away, where a biracial child is faring pretty well in his second term in the Oval Office.

The American Academy of Pediatrics last week announced its sup-

countries that recognize

ARGENTINA BELGIUM CANADA

port for same-sex marriage, citing evidence that children of gays and lesbians do better when the couples marry. It may take another case, even another court, to legitimize same-sex marriage nationally, but the country has moved on. An ABC/ Washington Post poll showed that 81 percent of Americans under 30 approve of gay marriage. Every time you blink, another lawmaker comes out of the closet on supporting the issue.

Charles Cooper, the lawyer for the proponents of Prop 8, which banned same-sex marriage in California, was tied in knots, failing to articulate any harm that could come from gay marriage and admitting that no other form of discrimination against gay people was justified.

His argument, that marriage should be reserved for those who procreate, is ludicrous. Sonia Sotomayor was married and didn’t have kids. Clarence and Ginny Thomas did not have kids. Chief Justice Roberts’s two kids are adopted. Should their marriages have been banned?

What about George and Martha Washington? They only procreated a country.

SAME-SEX MARRIAGE

ICELAND THE NETHERLANDS NORWAY PORTUGAL

As Justice Stephen Breyer pointed out to Cooper, “Couples that aren’t gay but can’t have children get married all the time.”

Justice Elena Kagan wondered if Cooper thought couples over the age of 55 wanting to get married should be refused licenses. Straining to amuse, Justice Antonin Scalia chimed in: “I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, ‘Are you fertile or are you not fertile?’ ” Scalia didn’t elaborate on his comment in December at Princeton:

“If we cannot have moral feeling against homosexuality, can we have it against murder?”

Cooper replied that a 55-year-old man would still be fertile, which was a non sequitur, given that he hails marriage as a bulwark against “irresponsible procreative conduct outside of marriage.”

He said that California should “hit the pause button” while “the experiment” of gay marriage matures.

And he urged that we not refocus

MAP BY STANLEY DEZIGNUS

SPAIN SOUTH AFRICA SWEDEN

“the definition of marriage away from the raising of children and to the emotional needs and desires of adults.” Did he miss the last few Me Decades?

The fusty legal discussion

inside was a vivid contrast with the lusty rally outside. There were some offensive signs directed at gays, but the vibrant crowd was overwhelmingly pro same-sex marriage. One woman summed it up nicely in a placard reading “Gays have the right to be as miserable as I make my husband.”

The only emotional moment in court was when Justice Kennedy brought up the possible “legal injury” to 40,000 children in California who live with same-sex parents. “They want their parents to have full recognition and full status,” he told Cooper. “The voice of those children is important in this case, don’t you think?”

While Justice Alito can’t see into the future, most Americans can. If this court doesn’t reject bigotry, history will reject this court.

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a look into the trial of ANTHONY GRAVE

By Pamela Collof

A few hours before dawn on a sticky summer night in Somerville, a one-stoplight town ninety miles northwest of Houston, police chief Jewel Fisher noticed the faint smell of burning wood.

A few hours before dawn on a sticky summer night in Somerville, a one-stoplight town ninety miles northwest of Houston, police chief Jewel Fisher noticed the faint smell of burning wood. Fisher was following up on a late-night prowler call east of the main drag, in the predominantly black neighborhood that runs alongside the railroad tracks. Turning down the town’s darkened streets, he suddenly caught sight of a house on fire and realized that he was looking at the home of 45-year-old Bobbie Davis,

Photo by dimitri_c

a supervisor at the Brenham State School. Fisher quickly radioed for help, but when volunteer firefighters arrived, they discovered the bodies of Bobbie, her teenage daughter, and her four grandchildren inside.

Each person had been brutally attacked and left to die in the blaze.

Four days after the murders the Rangers got their first break. Five hundred mourners—nearly one third of Somerville—turned out for the funeral, which was held in the local high school gymnasium. Among

them was Jason Davis’s absentee father, a 26-year-old prison guard named Robert Carter, whose bizarre appearance that day drew stares.

His left hand, neck, and ears were heavily bandaged, as was most of the left side of his face.

That afternoon, at the DPS station in Brenham, Carter sat down with the four veteran Rangers assigned

Two warrants were issued hours after Carter made his statement: one for Carter, who was immediately arrested, the other for Graves.

There was no physical evidence that tied Graves to the crime and no discernible motive—only the word of the crime’s prime suspect. Graves, who had moved back to Brenham from Austin that spring after getting

to the case: Coffman, Jim Miller, George Turner, and their supervisor, Earl Pearson. The Rangers were skeptical that one person could have brandished the three weapons used in the murders and had surmised early on that the Davis family had been killed by as many as three assailants. Carter was grilled by the Rangers, but he remained steadfast in his insistence that he knew nothing about the killings.

laid off from an assembly line job at Dell, was picked up before noon at his mother’s apartment and brought to the Brenham police station in handcuffs. In the station’s booking room, a surveillance camera captured the half hour that passed as the 26-year-old—who was never told why he was being detained— waited, bewildered.

Graves’s whereabouts at the time of the murders could be confirmed by at least three people, all of whom placed him at his mother’s apartment in Brenham.

Their story was corroborated by someone interviewed in the course of the investigation, someone who had no allegiances to Graves: the middle-aged white woman who had been in the other end of the line with Arthur. She and Arthur often talked late into the night, and sometimes he sang her love songs.

On the evening of the murders, he had serenaded her with Johnny Mathis standards. When Graves

The Rangers continued to interrogate him until well past midnight.

After several hours, they wore down Carter’s resistance, and he finally agreed to make a statement about the crime. At 2:53 a.m., Ranger Coffman turned on the tape recorder, and Carter began to talk. He had been present at the Davis home on the night of the murders, he allowed, but it was another man, his wife’s first cousin, Anthony Graves, who was to blame.

1990

1992

1994

Robert Carter and Anthony Graves are arrested for the murder of the Davis family.

The State of Texas v. Anthony Graves Graves is sentenced to death.

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caught him crooning “Misty” into the phone, he had ribbed his little brother mercilessly. The woman, who could overhear Graves mocking his brother in the background, had come to Arthur’s defense, and Arthur had passed the phone so that she could have a word with Graves herself.

When the Rangers questioned Graves after his arrest, they pressed him to tell them about the killings, but Graves insisted that he had no idea what they were talking about. When they told him that “Robert” had fingered him as the killer, he was unable to place his accuser. He agreed to take a polygraph exam, and like Carter, he was driven to Houston. That evening, Graves—who had not eaten since the previous night and was rattled after more than seven hours in police custody—failed the test.

Polygraphs are not admissible in court because of their unreliability, but they can help determine the direction of an investigation. Again the Rangers demanded that he tell them everything he knew about the murders, urging him to give Carter up. Exhausted, Graves broke down in tears, reiterating that he had no knowledge of the crime. When he did not confess to the killings, he was taken to jail.

At the bond hearing that October, more witnesses turned up to bolster the state’s case. Graves had been put in a cell directly opposite Carter’s at the county jail, and a sheriff’s deputy and a jailer took the stand to say that they had separately overheard him admit his guilt to Carter.

But, DeGuerin warned Graves, no matter how flimsy the evidence

1998

2000

Robert Carter acknowledges Anthony Grave’s innocence.

Robert Carter is excecuted.

against him, the judge was not likely to dismiss such a high-profile case.

In the end, Graves—whose arrest had been heralded on the front page of the local newspaper—was denied bond. He would have to remain in the county jail for the next two years, until his case went to trial.

As Graves’s trial date drew near, Sebesta negotiated a deal with Carter’s appellate attorney: If Carter testified against Graves, the state would allow him to plea to a life sentence if his conviction were reversed on appeal. The chances of a reversal were slim, but Carter was inclined to placate the district attorney, given that his wife was under indictment, and he agreed to help the prosecution when Graves went to trial. Even so, Sebesta was not convinced that he would testify.

“Our agreement with Carter was extremely tentative,” he said.

At the outset of the meeting, Carter did not regale his visitors with another fantastical story. Instead, he made a simple declaration, one that could have altered Graves’s fate if Carter had waited to announce it on the witness stand the following morning. “I did it all myself, Mr. Sebesta,” he blurted out. “I did it all myself.”

The district attorney was unconvinced. “I gave no credence to it, because it didn’t happen,” Sebesta told me. “Six people were killed.

There were multiple stab wounds, and some of the victims were hit over the head with a hammer. One of them was shot five times. We talked about it for a few minutes, and finally I said, ‘I’m tired of this.

We’re wasting our time.’ ”

2002

The next morning, as the time neared for Carter to take the stand, he had cold feet. At 7:30 a.m., when the district attorney met with him again, “he basically said that he wasn’t going to testify, period,” Sebesta recalled. “He said, ‘I can’t give her up.’ ” Finally, shortly after 9 a.m., following several reminders from the bailiff that Judge Harold Towslee was waiting for them, Sebesta approached Carter with a deal: If he agreed to take the stand, prosecutors would not ask him about Cookie. Carter at last relented. He would testify against Graves.

Before Carter raised his right hand to be sworn in, Sebesta informed the court of the prosecution’s agreement with the witness: Carter would testify as long as he was not questioned about his wife’s possible involvement in the murders. The district attorney made no mention of the fact that Carter had claimed, less than 24 hours earlier, to have committed the crime by himself, though prosecutors are required by law to hand over any exculpatory evidence to the defense, whether they believe its veracity or not.

Sebesta would later claim—when the issue came to light during Graves’s appeals—that he was “ninety-nine percent” certain he had told Graves’s lead attorney, Calvin Garvie, of Carter’s declaration when they bumped into each other in the hallway that morning. Garvie remembers things differently. “He obviously didn’t tell me that,” he explained to me. “That conversation never took place.” Had Sebesta informed him of such a crucial admission, he said, “You can be sure that I would have asked Carter about that

2006

Anthony Grave’s appeal is vetoed 6—3

on cross-examination.”

Graves, who sat behind the defense table in a borrowed suit, his expression stoic after two years behind bars, was elated to learn that Carter was testifying. But when Carter took the stand, he told the jury exactly what prosecutors had hoped for, recounting in a slow, deliberate voice how the two men had gone to the Davis home on the night of the crime.

Before Carter was shackled and transported back to death row, Sebesta posed a seemingly harmless question on redirect examination. “With the exception of the time you went to the grand jury and denied any involvement, all the different stories that you have told have all involved Anthony Graves, have they not?” he asked. In fact, both the district attorney and his witness knew otherwise; as recently as the previous evening, Carter had said that he had acted alone. But Carter agreed. “They have,” he said.

In the end, though jurors knew about Carter’s deal with prosecutors, they chose to believe his account of the night of August 18, 1992. After more than twelve hours of deliberation, they found Graves guilty of capital murder.

“Five children and a grandmother had been brutally murdered, and because of that, I think the burden on the state to prove its case beyond a reasonable doubt was somewhat less than it should have been,” Garvie told me. During the trial’s emotional penalty phase, a death sentence seemed all but a foregone conclusion. After Graves’s workplace fight was offered as proof

2010 Anthony Graves is released from jail.

Grave’s last appeal is successful; he walks off of death row by the end of the year.

2013

of his propensity for violence, the jury listened as the anguished members of the Davis family cataloged their grief. “There are some crimes that are so violent, that are so horrendous, that there is but one decision that you as a jury can make,” Sebesta advised jurors at the conclusion of his closing argument.

“Pick up the photographs of those six people and you’ll know what to do.” The jury—whose foreman was the panel’s lone black member— took less than two hours to assess a punishment. Anthony Graves was sentenced to death.

Carter also penned letters to the Davis family, declaring that Graves had no knowledge of the crime. To Lisa, he wrote, “I just don’t want [an] innocent person to die for something they don’t know anything about.” To Kenneth Porter, the father of Lisa’s other murdered, he wrote, “I am the only one responsible . . . I also know that I have lied in the past about this and I can certainly understand you and the rest for not wanting to believe me now.”

Hopeful that he could fix the record, he reached out to Graves’s state habeas counsel, Patrick McCann.

Carter had contacted McCann at a critically important time in Graves’s appeals. The Texas Court of Criminal Appeals had reviewed his case, and in 1997 it upheld his conviction.

Thirteen days before Carter’s execution, in the spring of 2000, after all of his appeals had been exhausted, Graves’s counsel was granted the opportunity to question Carter under oath. As he sat before the assembled attorneys in his starched prison whites, Carter stated in a low, flat voice that he alone had murdered the Davis family. Without betraying any emotion, he said that he had set out for Somerville on the night of August 18, 1992, with the intention of killing his son. He did not attempt to justify himself

or explain whether or not he had anticipated that five other people would be present at the Davis home that night. Yet he did describe in specific and chilling detail how he had carried out the crime.

On May 31, 2000, the day that Carter was set to die, his family gathered in Huntsville. He read the Bible, visited with his mother, and ate his final meal: a double cheeseburger and fries. At 6:02 p.m., he was led to the execution chamber, where he was strapped to the gurney. After two IVs were inserted into his arms, the warden asked if he had any last words. “I’m sorry for all the pain I’ve caused your family,” Carter said, turning toward the six grieving relatives of Bobbie Davis who had gathered as witnesses. “It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court.” Carter looked to his own family, who stood on the other side of the execution chamber, behind Plexiglas, but Cookie was not there.

She had become distraught that morning and returned to Brenham.

“I am ready to go home and be with my Lord,” Carter said, shutting his eyes. As the lethal dose of chemicals flowed into his veins, he coughed, then uttered a soft groan.

He was pronounced dead at 6:20 p.m.

The Innocence Network—which works in conjunction with the journalism department at Houston’s University of St. Thomas—first learned about Graves from his attorneys; David Dow, the network’s director, suggested to a journalism professor at St. Thomas named Nicole Cásarez that her students look into the case.

At the time, Graves’s prospects looked bleak. In 2000 the Texas Court of Criminal Appeals had denied his writ of habeas corpus— in essence, concluding that he had received a fair trial. Afterward, his Photo by Mike Munchel

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lawyers filed a motion asking the court to grant him another habeas appeal, arguing that he should be granted such an opportunity because his first habeas attorney had been incompetent. The court agreed to consider the claim, but in January 2002, a 6—3 majority ruled against Graves once again. But if his federal appeals were successful, there was always the chance— however unlikely—that he would be granted a retrial, in which any new or exculpatory evidence that had been discovered would likely be admissible. So Cásarez and her students forged ahead, interviewing upward of one hundred people over the next few years.

In 2000, Geraldo Rivera came to Texas to make an hour-long NBC special, Deadly Justice. Although Graves’s case had received scant media attention in the eight years since his arrest, the show’s producers interviewed him at the urging of Kerry Max Cook, whose own case was highlighted in the documentary.

Sebesta agreed to talk to producers as well. While the cameras were rolling, the district attorney admitted for the first time that Carter had told him, before taking the stand at Graves’s trial, that he had acted alone. “He did tell us that,” Sebesta said. “ ‘Oh, I did it myself. I did it.’

He did tell us that.”

The Fifth Circuit Court of Appeals began reviewing his case in 2003 after a lower court had denied relief, and the following year, it granted an evidentiary hearing. At issue was Carter’s statement to Sebesta that he had acted alone, as well as a second comment that the district attorney claimed Carter had made on the eve of his testimony at Graves’s trial: “Yes, Cookie was there; yes, Cookie had the hammer.” The evidentiary hearing, which took place in federal district court in Galveston, included testimony from Sebesta and Graves’s two trial lawyers. U.S.

magistrate judge John Froeschner, who presided over the hearing, found as fact that Sebesta did not reveal to the defense Carter’s statement that he committed the murders alone. But he denied Graves’s Brady claim, saying that Carter’s comments would not have altered the outcome of the trial; a jury, he reasoned, would still have decided to convict him. U.S. district judge Samuel Kent delivered a ruling that upheld Judge Froeschner’s findings the following year.

On March 3, 2006, a three-judge panel handed down a stunning rebuke to the lower courts. In a unanimous opinion, the panel held that the state’s case had hinged on Carter’s perjured testimony. Had Graves’s attorneys known of Carter’s statements to the district attorney, wrote circuit judge W. Eugene Davis, “the defense’s approach could have been much different . . . and probably highly effective.” The court reserved particular criticism for Sebesta for having prompted two witnesses to say on the stand

that Carter had never wavered, other than in his grand jury testimony, in identifying Graves as the killer.

With the stroke of a pen, Graves’s conviction was overturned. The ruling did not make any determination as to his actual innocence or guilt.

But by finding that his conviction had been improperly obtained, the court paved the way for a new trial.

On September 6, 2006, Graves walked off of death row. But there was no celebration beyond the floodlights and the coils of con-

certina wire, no crush of television reporters shouting questions, no tearful embrace with his mother, whom he had been allowed to touch just once during his fourteen years of incarceration. Instead, Graves walked out of his six-by-tenfoot concrete cell and into the arms of Burleson County sheriff’s deputies, who transported him back to the county jail in Caldwell, where he would await retrial, now set to begin in February. As if his path through the legal system had not been protracted enough, the retrial has been beset by delays, including months in which parts of the victims’ skulls and other key exhibits have gone missing.

For the past four years, as Graves has awaited trial, he has been confined to the Burleson County jail, a colorless, low-slung building by the side of Texas Highway 36, in Caldwell. Unlike his last stay at the jail, Graves, who is now 45, is not housed side by side with other inmates; given the nature of the crime for which he stands accused, the

county has relegated him to solitary confinement, citing concerns about his safety. Besides brief exchanges with the guards and phone calls that are limited to fifteen minutes, his only human interaction takes place on Wednesdays and Sundays, when he is allowed a twenty-minute visit by family and friends. He cannot touch his visitors; they talk by phone, separated by a sheet of Plexiglas.

capital

PUNISHMENT Deterrent Effects & Capital Costs

Photo by kgreggain

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Capital punishment stirs up fierce debate in the United States. In this article, Professor Jeff Fagan questions research that supports the longaccepted view of the deterrent effect of capital punishment. States must also come to terms with the fact that each execution can cost between $2.5 million and $5 million, he writes, and ask themselves whether that money can be put to better law-enforcement uses.

By Jeff Fagan Long before the U.S. Supreme Court restored capital punishment

in 1976 in Gregg v. Georgia, proponents of the death penalty claimed that executions save lives by deterring murders. This was a popular but unscientific view that was largely untested until 1975, when University of Buffalo Professor Isaac Ehrlich published an influential article asserting that during the 1950s and ‘60s, each execution “…saved eight innocent lives” by deterring murder.

Inspired by an economic model of crime developed by Professor Gary Becker of the University of Chicago, Ehrlich theorized that would-be murderers would choose between illegal and legal behavior based on the threat of execution.

Once his message leached into popular and political discourse on crime, Ehrlich’s modest acknowledgments of his study’s limitations were quickly lost. Instead, his conclusion had the impact of a sound bite and a bumper sticker rolled into a stick of political dynamite. In the same year, the study was cited by the U.S. solicitor general both in Gregg and in a North Carolina death penalty case. Almost immediately, sharp critiques of Ehrlich’s work appeared in academic journals such as the Yale Law Journal disputing his results and offering contradictory findings.

In 1978, an expert panel appointed

by the National Academy of Sciences strongly criticized Ehrlich’s work and rejected its conclusions.

Nevertheless, over the next two decades, economists and other social scientists attempted to replicate or reject results using different data, alternative statistical methods, and other twists. The debate produced a standoff.

History is now repeating itself.

In the past five years, a new wave of a dozen or more studies have appeared reporting deterrent effects of capital punishment that go well beyond Ehrlich’s findings. The estimates of the deterrent effects are far greater, ranging from three to 32 murders deterred for each execution. Some studies claim that pardons, commutations, and exonerations cause murders to increase, while others worry that the time necessary to complete appeals weakens the deterrent effects of execution. Some researchers argue that even murders of passion, among the most irrational of lethal crimes, can be deterred. And one study, by student Professor Zhiqiang Liu, claims that executions not only deter murders, but they also increase the deterrent effects of other punishments such as mandatory minimum sentences for drug crimes and “three strikes” laws for repeat

offenders.

The new deterrence research

has been discussed favorably and uncritically by national news outlets and has been declared persuasive in leading academic journals and by prominent scholars and jurists.

Legal academics, such as Professors Cass Sunstein and Adrian Vermeule, both of the University of Chicago, find the new deterrence evidence “powerful” and “impressive.” They couple it with “many decades of reliable data about [capital punishment’s] deterrent effects” as the “foundation” of their argument, which holds that since “capital punishment powerfully deters killings,” there is a moral imperative to aggressively prosecute capital crimes. Prof. Becker concurs, finding the evidence “persuasive,” while Judge Richard Posner brushes aside worries about the possible execution of the innocent as we ramp up executions to achieve even greater deterrent effects. Twice, authors of some of the articles have appeared before the U.S. Congress, stating the case for deterrence.

What are we to make of these claims? The bar is very high when behavioral science makes such strong causal claims. The standards of causal inference in social science—which include the ability by

Photo by Pit Klad

an independent researcher to replicate the original work under diverse conditions; the use of measures and methods that avoid biases from inaccurate “yardsticks” and faulty “gauges”; and the ability to tell a simple and persuasive causal story —are neither technical nor mysterious. They are hallmarks of science that have been recognized by the U.S. Supreme Court in a series of cases that demanded high yet common-sense standards.

When we apply contemporary social science standards, the new deterrence studies fall well short of this high scientific bar. Consider the following: Most of the studies fail to account for incarceration rates or life sentences, factors that may drive down crime rates via deterrence or incapacitation; one study that does so finds no effects of execution and a significant effect of prison conditions on crime rates. Another report shows incarceration effects that dwarf the deterrent effects of execution. Most fail to account for complex social factors such as drug epidemics that are reliable predictors of fluctuations in the murder rate over time. The studies don’t look separately at the subset of murders that are eligible for the death penalty, instead lumping all 20

homicides together.

But recent studies that separate capital-eligible homicides - the ones that should be most sensitive to the deterrent effects of execution—from other homicides show no significant changes over time in the rate of capital-eligible homicides in the face of variation in the execution rate. In fact, all but one of the new studies lump all forms of murder together, claiming that all are equally deterrable; the one study that looked at specific categories found that domestic homicides are more deterrable than others, a claim that flies in the face of six decades of theory and research in killings between intimate partners that shows their spontaneity and unpredictability.

The computations in the statistical models are often flawed. For example, simple corrections for large amounts of missing data produce estimates of the deterrent effect of execution that are no different from chance. Using alternate statistical models—models that account for the strong statistical correlation of murder rates from one year to the next—also produces results that show that changes in homicide rates are statistically unrelated to any measure of capital punishment.

Others find that any deterrent

effects are specific to Texas, a state that is atypical by (until 2005) denying juries the choice between execution and life without parole.

The studies also may unreasonably inflate the effects of execution by cutting the analyses in 1998, thereby excluding later years when homicides declined, as did executions.

Still others find the evidence of deterrence very fragile and unstable, with estimates of deterrence changing wildly with even the slightest adjustments or modifications either in measurement or statistical methods. Such instability should signal caution in not only causal inference, but in using these data in policy decisions or law when life and death are at stake.

Finally, the moving parts in the

deterrence story are unpersuasive.

Execution would have to achieve a marginal cost beyond the threat of lifetime incarceration. There is no evidence that this is the case.

Execution would have to occur with sufficient frequency and with widespread knowledge among wouldbe murderers to create a credible threat considering the types of murders that might be eligible for execution. There is no sign of that, nor does it seem likely. For example, there were 16,137 murders in

2004, according to the FBI, but only 125 death sentences were handed out, and 59 persons—most of whom were convicted a decade earlier— were executed. There are no direct tests of deterrence among murderers, nor are there studies showing their awareness of executions in their own state, much less in faraway states. There is no evidence that if aware of the possibility of execution, a potential murderer would rationally decide to forgo homicide and use less lethal forms of violence.

Murder is a complex and multiply determined phenomenon, with cyclical patterns for distinct periods of more than 40 years of increase and decline that are not unlike epidemics of contagious diseases. There is nothing in the new deterrence studies that fits their story into this complex causal framework.

As a public policy choice, execution requires trade-offs of public resources and investments for state legislators and local prosecutors.

The costs of administering capital punishment are prohibitive. Even in states where prosecutors infrequently seek the death penalty, the price of obtaining convictions and executions ranges from $2.5 million to $5 million per case (in current dollars), compared to less than $1

million for each killer sentenced to life without parole. These costs create clear public policy choices. If the state is going to spend $5 million on law enforcement over the next few decades, what is the best use of that money? Is it to buy two or three executions or, for example, to fund additional police detectives, prosecutors, and judges to arrest and incarcerate criminals who escape punishment because of insufficient law-enforcement resources?

Florida, for example, spent between $25 million and $50 million more per year on capital cases than it would have to if all murderers received life without parole. The Indiana Legislative Services Agency estimated that had the state sentenced its death row populations to life without parole, Indiana taxpayers would have been spared approximately $37.1 million.

The burden of these costs is

borne by local governments, often diverting precious resources not only from police, but from health care, infrastructure, and education, or forcing counties to borrow money or raise taxes. In the New York paradigm, before the New York State Court of Appeals invalidated the state’s death penalty in 2004 in People v. LaValle, death sentences

were rare, and there were no executions. As usual, things cost more in New York: Between 1995 and 2004, taxpayers spent about $200 million on the death penalty with no executions. The threshold question for states goes to the heart of the role of deterrence in American capital punishment law, and then joins with the problem of cost.

Justice Byron White, writing in Furman v. Georgia (1972), when the Supreme Court outlawed capital punishment, noted that when only a tiny proportion of individuals who commit murder are executed, the penalty is unconstitutionally irrational. The lessons of Furman once again haunt the present-day reality of most states, when execution is used so rarely as to defy the logic of deterrence. As states across the country adopt reforms to reduce the pandemic of errors in capital punishment, we wonder whether such necessary and admirable efforts to avoid error and the horror of the execution of the innocent won’t—after many hundreds of millions of dollars of trying—burden the country with a death penalty that will be ineffective, unreasonably expensive, and politically corrosive to the broader search for justice.

TOP 10

States with the Most Inmates on Death Row Source: NAACP Legal Defense Fund, “Death Row USA� (October 1, 2012). When added, the total number of death row inmates by state is slightly higher than the given total because some prisoners are sentenced to death in more than one state.

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