If Capital Punishment Were Subject to Consumer Protection Laws
McCord, David, Judicature
"The bill that we put together is exactly as advertised: One that takes out the risk of executing someone who is innocent[,] and . . . putfs] in place the ultimate penalty for those who carry out the most horrible crimes in society."
Massachusetts Governor Mitt Romney talking about his proposal to reinstate capital punishment (which failed to pass the legislature).1
General Misrepresentations Regarding Product and Seller: Product Characteristics, Uses and Benefits-It is deceptive to misrepresent a product's nature, characteristics, uses, or benefits, such as the product's durability, maintenance, conformity to specifications, or performance qualities, or to misrepresent test results as to a product's performance. This general principle has wide applicability. . . . The FTC definition of deception does not require intent; a practice is deceptive even if there is no intent to deceive.
From Unfair and Deceptive Acts and Practices (6th Ed.) by the National Consumer Law Center.2
I invite the reader to engage in a thought experiment. Imagine that capital punishment is a product that has been purchased by 38 states and the federal government. Imagine further that traditional consumer protection laws cover this transaction. Then ask, would the public have a cause of action for consumer fraud?
To analyze this question, we must begin by identifying the seller who made representations concerning this product. The obvious answer is the members of the legislative and executive branches, along with interest groups and media commentators who have promoted capital punishment as the answer to the most serious crimes. One must also recognize that many members of the public have sold themselves on the idea without needing much convincing from anyone.
Next we must identify the representations that induced the product's purchase. Those representations, with some amplifications, are as set forth by Governor Romney: that the product is effective to 1) select only guilty murderers; 2) select only the worst-of-the-worst of them; 3) sentence a substantial proportion of them to death; and 4) execute most of those so sentenced.
Then we must examine whether the evidence of the product's actual performance comes close to matching those representations. First, the product does not work to sentence only the guilty to death. The data on this point have been highly publicized and will not be rehashed here.3 Even by the most conservative count, over 20 demonstrably innocent persons-that is, persons who were simply "the wrong person"-have been sentenced to death in the post-Furman era. While it is as yet unproven that any actually innocent defendant has been executed in the post-Furman era, these false convictions do not give confidence that the product will fulfill the promise of executing only the guilty.
Let us combine consideration of the evidence on the second and third representations-whether the product selects only the worst-of-the-worst murderers, and sentences a substantial proportion of them to death. For calendar year 2004,1 conducted a study in which I unearthed facts about as many death-eligibledefendant case dispositions as possible.4 I found information concerning all 142 death-sentenced defendants, as many defendants who were spared by sentencers as possible (120), and as many defendants who were spared by prosecutors as possible (323), for a total of 585 defendants. I then assigned point values for each of the factors that made the cases more horrible than less aggravated murders. After compiling the point totals, by my analysis, 469 of these defendants were aggravated enough to be considered among the worst-ofthe-worst murderers. Here is what further analysis revealed:
* Only 30 percent of those 469 worst-of-the-worst defendants were sentenced to death (which significantly overstates the actual death sentencing rate because I was able to find only a fraction of the sentencer-spared and prosecutor-spared defendants to compare with the complete list of 142 death-sentenced defendants);
* Of the 64 most aggravated murderers, significantly less than half (28) were sentenced to death;
* Included among the murderers who escaped death sentences were the two most aggravated murderers (Oklahoma City federal building bomber Terry Nichols, and serial killer nurse Charles Cullen);
* Less than half of serial killers were sentenced to death (5 of 11), even though serial killers are often thought of as the ultimate "poster boys" for the death penalty;
* 162 murderers who were spared by sentencers or prosecutors were more aggravated than the 43 least aggravated murderers who received death sentences; 274 murderers who escaped death sentences were more aggravated than the 17 least aggravated murderers who received death sentences; and 341 murderers who were spared death sentences were more aggravated than the 12 least aggravated murderers who received death sentences;
* Those 12 least-aggravated defendants who received death sentences almost certainly were not among the worst-of-the-worst murderers. …