This was a good day for the criminal justice system. A federal judge set aside the death sentence given confessed serial killer Gary Lee Sampson upon proof that one of the jurors who had recommended death had concealed information that would have disqualified her from service.

Despite the fact that justice prevailed, this turn of events will undoubtedly upset many people -- and for very different reasons.

The latest Gallup survey of public opinion concerning the death penalty is encouraging yet somewhat misleading. According to Gallup, opposition to capital punishment stands as high as it has been at any point in time since 1972, when the U.S. Supreme Court ruled that the sanction was unconstitutional in its uneven application against minorities and the poor. Based on 1,005 interviews taken between October 6 and October 9 of this year, 35% of respondents indicated their opposition to capital punishment.

Of course, turning that figure around (as many pro-death zealots will do), it is still the case that a healthy majority remains in favor of capital punishment. Specifically, 61% of the Gallup respondents was in favor of the death penalty, with another 4% offering no opinion on the matter.

I continue to be amazed at the arrogance of some people who insist that I would abandon my opposition to capital punishment if a loved one of mine were murdered. These folks apparently believe that they can anticipate how I would respond -- what would be in my heart and in my head -- even better than I can.

There is nothing automatic about becoming pro-death after surviving the tragic loss of a family member. Ultra-punitive know-it-alls who believe otherwise might take a lesson in civility from a Connecticut group that has signed a letter, urging repeal of the state's death penalty statute, to be delivered today to the legislators in Hartford.

It is not a constitutional argument that these residents of the Constitution State are advancing. Rather it is their shared wisdom about capital punishment -- a wisdom that has little to do with some liberal mantra or an ivory tower perspective. The experience linking these opponents of state-sponsored killing is that they all have lost a family member to murder. They see the downside to killing, no matter who is doing it and under what authority.

I just returned from Trinidad and Tobago, and survived to tell about my academic expedition to the tiny nation that has the unflattering distinction of ranking fifth worldwide in homicide. Also home safe are the three dozen doctoral students and the few faculty colleagues who traveled with me. Still, one female student did endure a rather scary episode on our last day away, when an aggressive stranger cornered her in a locked room. But this close encounter of the frightening kind occurred in our upscale hotel, not in some crime-ridden section of this Caribbean republic.

I write about my journey not to turn this crime blog into a travel log, but to carry further my last column concerning deterrence —specifically, the question of whether the death penalty makes would-be killers think twice, assuming, of course, that they even think once. When it comes to thinking, however, it is wishful thinking for Trinis to expect that a proposed resumption of hanging will bring peace to their troubled country.

"Were we to reinstitute hangings," acting Prime Minister Jack Warner aid last summer, "it will have a dent on crime. I am convinced.” Despite the strength of his conviction, this widely-held perspective ignores both scientific research and basic logic concerning how drug dealers, gang-bangers and other predators balance risks and rewards.

In the hotly-contested gubernatorial race in California, a state where executions are legal yet so infrequent that the backlog of cases exceeds 700, the death penalty has surfaced as an issue dividing the candidates. In a new television ad, Republican Meg Whitman criticizes her Democratic opponent for his stance on the issue:

"Jerry Brown opposes the death penalty," a police sergeant says in the 15-second message, after which another officer responds, "Even for cop killers."

Not only is the claim that Brown is soft on crime, but apparently he's not willing to protect the men and women in blue who put their lives on the line every day to protect the rest of us from harm.

No one, regardless of position on capital punishment, would argue against the idea of shielding the police from armed assailants. As shown in the figure below, dozens of law enforcement officers are murdered nationally every year while in the line of duty.

There is, however, an inherent inconsistency to the proposition that threatening would-be cop killers with the penalty of death might actually make them think twice about taking aim at the police. Weighing the risks and rewards, some criminals deliberately choose to kill a police officer rather than to be taken into custody. Although despicable, the act is designed to avoid punishment altogether, be it capital or of lesser variety.

A long tradition of research on the deterrence process indicates that what discourages people from wrongdoing is not the severity of punishment, but its perceived likelihood. By killing a police officer, a criminal seeks to reduce the chance of punishment—any punishment. Criminals who believe that they can avoid apprehension by killing a police officer will not be deterred by whatever penalty is on the books.

Contextual note: If you’ve been following this blog since its launch last March, you may already know that I am opposed to capital punishment. My opposition is not so much based on morality, ethics or a fundamental belief about the sanctity of human life, but on utility—that is, the lack of effectiveness or concrete gain derived from executing murderers. Previously, I wrote about the significant financial burden posed by the death penalty process, although, as some have argued, there is no price tag to justice. As promised, I plan to address in due course the many ways in which capital punishment is problematic. Here I discuss the issue of racial bias, and will take up other matters, including deterrence, in future columns.

In an “exit interview” of sorts just prior to his June retirement, Justice John Paul Stevens confessed to NPR’s Nina Totenberg that his only regret, while looking back over his 35 years on the Supreme Court, was a 1976 vote to affirm the use of capital punishment. In Gregg v. Georgia, decided just after Stevens’ appointment, the high court ended a four–year moratorium on the death penalty and cleared the way for states to resume executions under narrowly prescribed conditions.

The hope and expectation at the time was to constrain juries from misguided use of their discretion, a level of arbitrariness that had led the court in 1972 to strike down capital punishment. In a 5-4 decision, supported by 9 separate opinions, the Court had ruled in Furman v. Georgia that the death penalty, as practiced, violated the Eighth Amendment prohibition against “cruel and unusual” punishment. The majority was of the opinion that the death penalty, although not cruel and unusual in principle, was however being applied capriciously and unevenly, more often against minorities and the poor.

Then in 1976, when presented with revised statutes, the Supreme Court, by a vote of 7-2 (with Stevens joining the majority), held that capital punishment was indeed constitutional under two conditions. First, the trial process needed to be bifurcated into guilt and penalty phases. Second, juries had to be given clear guidelines concerning the aggravating factors that would warrant such a sanction and the mitigating factors that would indicate otherwise. Stevens and his brethren believed that by reserving capital punishment only for the select group of heinous cases that were without mitigation, the penalty could be applied independently of race or privilege.

Author's note: Yesterday's chat on capital punishment was lively and informative. As a way to close the book on the discussion, at least for now, before moving on to other matters, I have posted a column that I published in the Boston Globe several years ago, involving my trip to Missouri to witness an execution. Rather than an intellectual debate of the issues, it provides a different perspective on our country's addiction to capital punishment.

Too Easy to Kill
James Alan Fox
January 1997

I have long been a vocal opponent of capital punishment, publishing academic studies and testifying before legislative bodies on a few occasions. Despite all my reading, research and reflection on the evils of execution, I had never witnessed one firsthand -- that is, not until last month.

I flew from Providence to Potosi, Mo., a small "prison town" two hours south of St. Louis, to serve as a state's witness to the execution of Richard Zeitvogel. A 40-year-old career criminal, Zeitvogel had cold-bloodedly murdered two cellmates while incarcerated for the 1976 rape and robbery of a Pulaski County family. In the crime that earned him the time, Zeitvogel had forced the terrified homeowner to watch as he and his buddies raped the man's wife in a spirit of camaraderie.

Now I would be the one to do the watching, as the State of Missouri would take Zeitvogel's life by means of lethal injection. Of course, I was not forced to witness this act of violence, and my willingness, though conveniently couched in terms of scholarly curiosity, made me feel self-conscious about my somewhat voyeuristic voyage to the "Show Me" state.

Among the 869 sundry amendments to the Massachusetts House budget bill is a proposal, sponsored by Rep. James Miceli, to reinstate capital punishment in the Commonwealth. “A capital idea!,” you say? “A real savings for the beleaguered Massachusetts taxpayers!,” you hope? Well, I wouldn’t bank on it.

A 32-year veteran of the Massachusetts House of Representatives, the Wilmington democrat is a rock-solid law and order guy, and proud of it. For years he has yearned to see the death penalty restored in Massachusetts, a state that has not executed anyone since 1947 when two men were electrocuted at Charlestown State Prison. Feeling thwarted by House leadership in getting a full hearing for a capital punishment bill, Miceli chose the unconventional route of a budget bill add-on. Ironically, it the proposal were to become law, the state budget would be severely strained.

Enough said about the verdict in the John Odgren murder trial. I'm moving on to other issues of crime and punishment, and I've got a slew of ideas floating around my brain to share and debate.

But before I close the blog on John Odgren, I must put to rest one matter that was raised time and time again by many folks who offered their opinion that Mr. Odgren should be executed and the hope that Massachusetts would reinstate capital punishment for cases just like this. Like it or not, the state simply cannot execute juvenile murderers like John Odgren or any other offender under 18, no matter how mature the defendant, how depraved his character, or how heinous his crime. In fact, no state can.

I’ve returned from my weekend visit at Florida’s death row--9:00 am to 3:00 pm last Saturday and Sunday, not counting the time devoted to the elaborate system for identification and verification. My journey came at the invitation of one death row resident who had been convicted in 1991 of three counts of murder. His protracted legal battle--retrial upon retrial because of multiple errors of due process--has kept him alive on the row for nearly 20 years.

The visiting room is equipped with an array of steel tables, enough for 26 of the more than 300 death row convicts to entertain guests--some spouses, but mostly girlfriends met through prison letters. The rules permit inmates to greet their loved one with an appropriate show of affection. It was especially touching is to see couples stroll hand-in-hand through the "park." (There isn’t really a park, or even an outdoor visiting area. But for some reason unknown to me, the visiting room is officially called “Visitor Park.”)

Besides girlfriends (and a few boyfriends), other visitors included various friends and family members. Children passed the time while visiting their dads by playing a variety of games, prominently marked “Death Row,” that are stashed in the corner of the room. I doubt the kiddies recognized the irony to some of the options, such as “Clue,” “Life,” and “Sorry--The Game of Sweet Revenge.” The most curious, however, were the decks of playing cards, each with details and a picture of some victim of an unsolved homicide or some missing persons along with the number of the tip line for volunteering information.