May 1995                          Official Publication of JUSTICE FOR ALL                             Volume 3 Issue 5
"Justice will only be achieved when those who are not injured by crime, feel as indignant as those who are."
-King Solomon 635-577 BC

by Gary K. Woods

"That throughout the United States, more severe punishment for persons convicted of violent crime would be desirable" was the value resolution for Lincoln-Douglas debate at recent speech tournaments. The resolution voiced the feelings of the majority of Americans; that the rate of violent crime is a major issue and we need to get tough with violent offenders. The two reasons Americans most often give for getting tough with violent offenders are retribution and deterrence. Retribution, the punishment meted out by society for breaking its laws. Deterrence, a positive force that effectively deters someone from doing something, in this case committing a violent crime. This paper will not deal with retribution: however, what constitutes effective deterrence is the central issue of this paper. The Lincoln-Douglas debates offered a myriad of arguments on deterrence, but one of the more interesting was certainty of punishment. I am now convinced that certainty of punishment, not more severe punishment, is the most effective deterrent to violent crime. Violent crime rates throughout the United States have continued to rise despite laws authorizing more severe punishment for persons convicted of violent crime. "In 1992 an estimated 432,900 adults were arrested for aggravated assault, up from 236,600 in 1980. The probability of going to prison given arrest for aggravated assault went from 45 admissions per 1,000 arrests to 58" (Gilliard, Beck 8). An analysis of these statistics indicates that the number of persons arrested for aggravated assault rose by almost 83% from 1980 to 1992; and that the probability of going to prison rose 27%, due mostly to mandatory sentencing laws enacted at the state and federal level. A cursory glance at figures provided by Darrell K. Gilliard and Allen J. Beck in a U.S. Dept. of Justice bulletin indicate that the rise in all categories of violent crime was only 34% from 1980 to 1992; however, the percentage is skewed because the total includes the category of burglary, which is not a violent crime (Gillard, Beck 8). A more intense examination of these figures reveals that the number of persons arrested for burglary in l980 was actually greater than the number arrested in 1992. If the number of persons arrested for burglary is subtracted from each year's total, the true rise in all categories of violent crime from 1980 to 1992 is almost 60%. Additionally, the U.S. Dept. of Justice reports that for all categories of violent, felony crime, arrests were up 15% from 1988 to 1992, but convictions were up 45% and sentences were up 41% (Langan, Graziadei 7). If people in the U. S. are unaware of the increase in violent crime rate, they must have been in a coma for the last fifteen years. The criminal justice system in the United States has been unable to utilize more severe punishment as an effective deterrence to violent crime. Over ninety percent of all felony convictions are the results of' a guilty plea; however, "Persons convicted of murder were the least likely to have pleaded guilty (59%) and the most likely to have been convicted by a jury (33%)" (Langan, Graziadei 9). This statement needs additional explanation. The practice of plea bargaining (bargaining between the defendant's legal counsel and the District Attorney's office to reduce the charge to a lesser offense in exchange for a guilty plea by the defendant) is the real reason behind the impressive percentage of guilty pleas. Evidence of plea bargaining can be found in the fact that convicted murderers were least likely to have pleaded guilty (because prosecutors are less likely to agree to plea bargaining on a murder charge), and that, within categories of violent crime, the highest percentage of felons convicted by a jury are murderers (since there was no plea bargaining offered, the defendants took their chances with a jury trial). Further evidence that our criminal justice system is leaking is found in a report from the U.S. Dept. of Justice that of the 432,550 persons arrested for aggravated assault in 1992, only 58,969 were convicted of aggravated assault (Langan, Graziadei 5). Another reason our criminal justice system is unable to utilize more severe punishment is due to lenient sentencing. A report by the U.S. Dept. of Justice reveals that of convicted murderers, only 2% were sentenced to death and 26% to life imprisonment; the other 72% received a lesser sentence (Langan, Graziadei 10). Finally, few felons serve their entire sentence; the majority receive parole or some type of early release. A U.S. Dept. of Justice Bulletin reports that on average, convicted murderers will only serve 43% of' their sentence; rapists 39%; and persons convicted of aggravated assault, 33%. (Langan, Dawson 4) These statistics are dramatic evidence that regardless of' the severity of penalties authorized by our legislators for persons convicted of violent crime, our criminal justice system is unable to effectively utilize those penalties. Other industrialized countries have not experienced the extreme rise in violent crime rates of the United States. In fact, Japan has had a total increase in recorded crimes of 15% between 1970 and 1990; "But the striking figure is that over the same period, violent crime dropped by two-thirds (The Economist 38). Also impressive is that the prison population in England and Wales increased by 6% from 1980 to 1991, while the prison population of the United States increased by 142% (Lynch et al 22). Homicide rates in England and Wales rose from four per million in 1960 (Walker 21) to 12.9 per million in 1992, in contrast to the United States with a homicide rate of over 94 per million in 1992. Clearly, just the authorization of more severe punishment for persons convicted of violent crime is an insufficient deterrent. Certainty of punishment is an effective deterrent to violent crime, "In 1989 Japan cleared 96% of its murder cases; for which the penalty may be death; and 76% of' its robberies, a far higher proportion than elsewhere (The Economist 40). Also, when referring to Japan's low crime rate, "a big reason for the low rate of serious crime is that it is so hard to get away with" (The Economist 40). In a discussion on the negligible effect the death penalty has on homicide rates. Walker reports, "Countries with a high murder rate may also be countries in which the chances of escaping the penalty for murder are high" (Walker 241). Again, in a discussion on the death penalty as a deterrent, New York University Law Professor Anthony Amsterdam is quoted, "What deters people from crime is the likelihood of getting caught and undergoing punishment (Kaczorowski 226). Donald H. Bouma, a professor of sociology at Western Michigan University in Kalamazoo agrees that certainty of punishment is a deterrent, "There is recognition that punishment which is reasonably certain and closely related in time to the offense can have a deterring effect and is thus a justifiable reason for incarceration, aside from any possible rehabilitative effects (Bouma 197). The question may be asked, if so many experts agree that certainty of punishment is a deterrent to violent crime, why isn't it effective now; the answer according to Yu and Liska in the magazine, Criminology, is simple, "Perhaps because most research reports that the certainty levels in most cities, counties and states are very low and only infrequently reach tipping points (Yu, Liska 448). Tipping points are the points at which the certainty of punishment (expressed as a percentage of offenders punished out of the total offender numbers for that category of violent felony) has a deterrent effect on crime. Several studies have concluded that tipping points exist. "Despite differences in samples and methods, all three studies report some evidence of a tipping effect" (Yu, Liska 460). Another interesting aspect of the study by Yu and Liska is that tipping points vary among racial groups. Yu and Liska studied crime statistics for both blacks and whites in several cities and determined that the tipping points for blacks were significantly different than for whites. "First, for robbery, rape, and assault offenses for which the race of offenders can be identified, blacks show higher certainty rates than whites. Second, with the exception of white assault, race-specific crime rates are affected only by race-specific certainty rates" (Yu, Liska 469-460). To reduce the rate of violent crime, certainty of punishment perceptions must be raised in the United States. Mandatory minimum sentencing would help raise the perception of certainty of punishment. "Mandatory minimum sentencing laws have proven popular for several reasons. First they promise certainty of punishment (Neubaner 389). More police in high crime areas would help in apprehension rates. An analysis of a report. by the U.S. Dept. of Justice, reveals that the apprehension rate (not conviction rate) for the various categories of violent crime are; murder (81%), rape (30%), robbery (19%), and aggravated assault (38%). It seems clear that if we had more police we could increase the apprehension rate and therefore, increase the perception of certainty of punishment. Finally, as reported by Neubauer, we could reduce the number of prisoners eligible for parole and early release programs, by passing determinate sentencing laws. "There is some evidence from California (Brewer et al.; McCoy) and North Carolina (Clarke) that the offender's chances of receiving probation declined (Neubauer 386). Therefore, creditable documentation exists on ways to increase certainty of' punishment. The United States must reduce the rising rate of violent crime or face a continuing decline in the quality of life for all Americans. Certainty of punishment, not more severe punishment, is the most effective deterrent to violent crime. Certainty of punishment includes: apprehension, conviction, sentencing and the serving of that sentencing. It takes all of these elements together to raise the perception of' certainty of punishment. There are a series of logical, positive steps that can be taken within the context of the political process that will increase the perception of certainty of punishment and reduce the violent crime rate throughout the United States.

A Compelling Argument: 800-plus Lives Lost

You know the feeling, especially if you're an "A type personality. When you take the airport people-mover, you continue walking. When you go to the bank teller,s window, you pick the line that will get you in and out the fastest. So much to do, so little time. The clock is ticking, the days rush by, the pressure is on. The anxiety keeps on building. This kind of get-it-done stress no doubt afflicted Reginald McFadden. Even as a teenager he was precocious, notching up his first professional job with the use of duct tape. Then early last year, into a brief, three-month period, he managed to pack a lot of activity. His results: one murder, two additional murders to which he is strongly linked, and at least one rape. The duct tape? He used it 25 years ago in the murder of Sonia Rosenblum, a 60 year-old woman who suffocated under the tape while being robbed. The thing that separates McFadden from your garden-variety murder-rapist is that he had just been released from a Pennsylvania prison, his sentence commuted on the 1969 conviction. That makes him of a rather elite group -- those who murdered, served time, left prison, and returned to society to murder again. There are more of them than you think. The most recent analysis was done by Paul Cassell, a law professor at the University of Utah, who used 1984 as a baseline. In an article in the Stanford Law Review, he wrote: "Of the roughly 52,000 state prison inmates serving time for murder in 1984, an estimated 810 had previously been convicted of murder and had killed 821 persons following their convictions. Executing each of these inmates. . .would have saved 821 lives. You could add Margaret Kierer, a 78-year-old retired blood bank employee, and possibly Robert Silk, whose cash machine card was used for six days by McFadden. Well, suppose the authorities had kept the murderers in prison - wouldn't that have served as well? Not exactly. A Justice Department study in 1987 showed at least five prison officials were killed since December, 1982, three of them by inmates serving murder sentences. McFadden was a model prisoner. He had experienced a religious conversion, kept a spotless record, earned a high school equivalency diploma, and even won a barbers, license. Unfortunately, he was also a psychopath, one who feels little genuine emotion, but could con the authorities into thinking he was a safe bet to return to society. The debate on capital punishment has intensified, and in some states, political candidates have made the return of, or the introduction of, the electric chair, the gas chamber, or the scaffold the centerpiece of their campaign. Opponents of capital punishment argue that executions do not prevent homicides, and they may be right. It is notoriously difficult to show cause and effect, and some states with capital punishment may have a higher homicide rate than those that don't. But look at it from the point of view of Mrs. Kierer,s survivors or the children of these prison guards. Doesn't the state also have an interest in protecting citizens from murderers already tried, convicted, and incarcerated? Those 800-plus lives snuffed out represent a grisly "double dip for the murderers. Think of those 800-plus people the next time the capital punishment debate is joined.

reprinted with permission Thomas A. Mahoney, Editor-at-large Air Conditioning, Heating & Refrigeration News April 10, 1995


As you may know, most of the time I,m doing just fine, but as the anniversary of my daughter,s death approaches, I find it more and more difficult to get through the days. It is at this time that I really appreciate the significance of Justice For All and the people who make up this invaluable organization. I want to thank all of you, particularly you, Pam, Dianne and Woody Clements, Cheryl Bean, Dotti Walker, Melissa and Adolph Peña, Claire Varner, Andy Kahan, Randy and Sandra Ertman, Carlton Collier, Sterlene Donahue, and many more of you who have been so very supportive through this, the most difficult year of my life. Well, I will be flying out to Cancun, Mexico to a jazz festival (compliments of some wonderful friends) on the anniversary date and will return on Memorial day (the day Nina was buried), so I won,t be hanging around here feeling sorry for myself. Please pray for a safe trip for us. I thank you and thank God for you.

Always, Betty McMurrin

  1. Imposition of the death penalty in the United States is extraordinarily rare. Since 1972, there has been 1 execution for every 1800 murders, or 0.055%. There have been approximately 480,000 murders and 263 executions from 1972-2/1/95, (Justice Department and FBI's Uniform Crime Report)
  2. 0.3% of those sentenced to death are executed every year (average from January 1977 through 1993. Of the 4,641 persons sentenced to death, 226 have been executed (Bureau of Justice Statistics, 1994.)
  3. 84% of the murder victims in death penalty cases are white. 50% of murder victims are black (Death Penalty Information Center, 07/94).
  4. The average death row inmate receives over $2.3 million in state support, primarily prison and defense costs relating to the trial and to the exhaustive appeals process granted the killer. Victim's survivors receive virtually nothing. (Texas Department of Criminal Justice and Dallas Morning News.)
  5. For those executed, the average time served on death row in Texas is 8.7 years. It is 10.8 years for those from Harris County (Houston). (Texas Department of Criminal Justice and Harris County District Attorney's Office and Houston Chronicle, 04/03/95.)
  6. Since 1976, two white murderers have been put to death for the murder of black persons and 71 blacks have been put to death for the murder of white persons. (Bureau of Justice Statistics and Houston Post, Associated Press 01/25/95.)
  7. After examining 42,500 criminal files in the nation,s 75 largest counties, Patrick A. Langan, senior statistician with the U.S. Bureau of Justice Statistics, concluded that there was no evidence found "...that, in the places where blacks in the United States have most of their contacts with the judicial system that (the) system treats them more harshly than whites. (White Lies About Black Crime, John J. Dilullio Public Interest. Winter 1995, quoting from Patrick A. Langan's study.) Langan's conclusions were consistent with those reached by The Panel on Sentencing Research (National Academy of Sciences, Research on Sentencing, 1983).
  8. Since 1976, when the Supreme Court allowed reintroduction of the death penalty, whites have accounted for 56% of those executed, blacks 38%. Yet blacks have committed approximately 53% of all murders in that time period, whites approximately 45%. (Houston Post, Associated Press, 1/25/95, Bureau of Justice Statistics and FBI's Uniform Crime Report.)
  9. 94% of black murder victims are killed by blacks; 85% of white murder victims are killed by whites. (Uniform Crime Report, Single Victim/Single Offender, FBI, 1993).
  10. No evidence of system wide (JFA emphasis) discrimination in the imposition of the death penalty (exists) beyond the 1950's. (Gary Kleck, "Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the Evidence with Additional Evidence on the Death Penalty. American Sociological Review, Vol. 46, No. 6, Dec. 1981.) Tragically, individual cases of discrimination are ongoing (JFA).
  11. A thorough examination of the death penalty, as imposed by Harris County (Houston) juries, since 1982, found that there was no pattern of discrimination. The death penalty was imposed on white and black murderers in proportion to the capital offenses committed by those race classifications. (The Houston Post, October 16, 1994.)
  12. Approximately 75% of Blacks in the U.S.( 35% of Whites) believe that blacks are treated more harshly than whites by the criminal justice system. This is not at all surprising, considering that blacks have suffered some 400 years of slavery and racially discriminatory criminal justice practices. From the practice of punishing blacks , who rape whites, with death and the punishment of whites, who rape blacks with a slap on the wrist to the three trials to convict Byron de La Beckwith for the murder of civil rights leader Medgar Evers, generations of black Americans shall not and cannot forget.
  13. Blacks make up approximately 50% of the prison population, but only 11% of the national population. Researchers found that there was a very close relationship between the racial distribution in arrest and prison statistics and the racial distribution of offenders described by crime victims. In other words, racial groups, are represented in prison according to their involvement in criminal activity. (Al Blumstein, On The Racial Disproportionally of U.S. Prison Populations, (1982); M. Handelang, Crime Victimization (1976) and Race and Involvement (1978, Patrick Langan, Racism on Trial; New Evidence to Explain the Racial Composition of Prisons in United States (1985). However, Langan finds that, in 1979 and 1982, blacks were over represented in prison by 16% to 15%, respectively. Although sentencing studies consistently show that, compared to other factors, an offender,s prior criminal record is a key determinate in the imprisonment decision, JUSTICE FOR ALL believes that further study on the racial aspects of crime and punishment must be continuously scrutinized.
  14. Whites are executed 13 months quicker than blacks. (Bureau of Justice Statistics, 1995).
  15. Legal variables, such as prior criminal history and the aggravated nature of the murder, are the proven basis for imposition of the death penalty. The black/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls. (Execution by Quota?, The Public Interest, Summer, 1994, and many other studies, including those done by the U.S. Justice Department and by Joseph Katz in his Statement to the Senate Subcommittee on the Judiciary Concerning the Relationship Between Race and the Death Penalty, 10/02/89).
Information Compiled by Dudley Sharp III


There are at least 22 procedures necessary in reaching a death sentence. They are:
  1. The crime must be one listed as a capital crime in the penal code.
  2. A suspect must be identified and arrested.
  3. In Harris County (Houston), a panel of district attorneys determines if the case merits the death penalty as prescribed by the Penal Code (See 11-18).
  4. A grand jury must indict the suspect for capital murder.
  5. The suspect is presumed innocent.
  6. The prosecution must prove to the judge that the evidence, upon which the prosecution will rely, is admissible.
  7. The defendant is assigned two attorneys. State funds are provided to defense council for investigation and trial. 8. Select a jury, which usually takes 3-l2 weeks.
  8. A trial is conducted.
  9. Burden of proof is on the State.
  10. All 12 jury members must find for guilt, beyond a reasonable doubt. In most cases the juries know nothing of the defendant's past, at this stage. Then the punishment phase begins:
  11. The prosecution presents additional damning evidence against the killer, i.e., other crimes, victims, victims testimony, police reports, etc.
  12. In order to find for death, the issues to be resolved by the jury are: (a) did the defendant not only act willfully in causing the death, but act deliberately, as well, (b) does the evidence show, beyond a reasonable doubt, that there is a likelihood that the defendant will be dangerous in the future, (c) if there was provocation on the part of the victim, were the defendant's actions unreasonable in response to the provocation, (d) is there something about the defendant that dimin- ishes moral responsibility or in some way mitigates against the imposition of death for the defendant in this case.
  13. The defense presents all mitigating circumstances for the killers actions, i.e., family problems, substance abuse, age, mental disability, parental abuse, poverty, etc. Witnesses are presented to speak on behalf of the defendant.
  14. The jury must take into consideration those mitigating circumstances (Penry decision) and, if only 1 juror believes that the perpetrator deserves leniency because of any mitigating circumstances, then the jury cannot impose the death penalty.
  15. When the death sentence is imposed, the perpetrator receives an automatic appeal. The average time between conviction and execution is 8.7 years (10.8 years in Harris County, Houston), as the case goes through both state and federal appeals systems.
  16. The death row inmate is provided an attorney, or attorneys, to handle the direct appeal, at county cost.
  17. Generally, the state does not provide inmate attorneys for habeas corpus appeals. Volunteer lawyers and federally funded attorneys with the Texas Resource Center currently provide habeas corpus representation for death row inmates. However, Harris, Tarrant, and Dallas counties now appoint and pay for habeas corpus representation for death row inmates. Currently (1995), habeas corpus reform legislation, if passed, would provide state funds for inmate attorney for habeas corpus appeals.
  18. Defendants may be granted a hearing under a new procedure created by the Texas Court of Criminal Appeals in 1994 to hear claims of innocence. The burden of proof for these claims of innocence mirrors that used by the Federal courts.
Note: All 12 jurors must agree with the prosecution in all five specific areas; those being 11, 13a, 13b, 13c and 13d (with 17 and 18). To punish with death, the jury must unanimously find against the defendant in 60 out of 60 considerations. To avoid death, it takes only one individual jury member to find for the defendant in 1 out of those 60 total considerations. The prosecution must prevail in 100% of those 60 considerations, the defense in but 1.67%. If convicted, the inmate may then begin an appeals process that could extend through 22 years, 60 appeals and nearly 200 individual judicial and executive reviews. The prosecution and victim survivors have no right to appeal.

This issue is dedicated to the Memory of Jon Wesley Varner, Son of Clair Varner

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