Public Comment to 60 Day notice

Criminal Justice Legal Foundation

December 12, 2019
Board of Trustees

EmeritusTrustees

Chairman Emeritus
Jan J. Erteszek
(1913 - 1986)

Patrick A. Doheny
Barron Hilton
James B. Jacobson
Robert S. Wilson

Chairman
Rick Richmond
Vice Chairman
Terence L. Smith

Tracy L. Snell
Bureau of Justice Statistics
810 Seventh Street NW
Washington, DC 20531

President & CEO
Michael Rushford
Secretary-Treasurer
Gino Roncelli

Re: Data Collection for Capital Punishment Report (NPS-8)
Dear Ms. Snell:

William E. Bloomfield, Jr.
Jerry B. Epstein
Michael H. Horner
Samuel J. Kahn
R. Hewitt Pate
Mary J. Rudolph
William A. Shaw

The Criminal Justice Legal Foundation (CJLF) submits this
comment in response to the notice of October 16, 2019, 84 Fed. Reg.
55333. CJLF is a nonprofit corporation formed to protect and advance
the interests of victims of crime. Our interest in this data collection is in
its utility, i.e., the usefulness of the data in deciding questions of
criminal justice policy.

Hon. Pete Wilson

Legal Advisory Committee
Hon. George Deukmejian
Hon. Edwin Meese, III
Hon. Edward Panelli

Legal Director &
General Counsel

As is common with BJS products, the utility of this one is diminished
by excessive emphasis on demographic information of little policy
relevance and insufficient information on the crimes committed, the
primary determinant of just punishment. On Form NPS-8, question 7
asks for marital status, and question 8 asks for education level at the
detail of individual grades of schooling. These questions have little or no
relevance to any policy questions, and respondents’ time answering them
could be better spent on more relevant data.

Kent S. Scheidegger

Academic Review Board
Prof. George L. Kelling
Prof. Steven Levitt
Prof. Joseph M. Bessette

On the other hand, question 6 asks for the offense for which death is
imposed merely by checking boxes for murder, kidnap, rape, or other.
The answer will never be kidnap or rape because the Supreme Court has
declared the death penalty unconstitutional for nonhomicide offenses.
See Kennedy v. Louisiana, 554 U.S. 407 (2008). Everyone on state death
row is there for murder, although the federal situation is a bit more
complicated.
The most hotly debated policy questions that this data collection can
help answer involve issues as to whether the murderers selected for the
sentence of death are selected for legitimate reasons of their crimes and

2131 L Street, Sacramento, CA 95816 • (916) 446-0345 • Web page: http://www.cjlf.org

Tracy L. Snell
December 12, 2019
Page 2

their criminal history or rather for impermissible reasons. One step that
legislatures can take to make capital punishment more regular and less
arbitrary is to shape the requirements for imposing it to fit the kinds of
crimes that sentencers actually decide warrants the penalty. The present
data are not much help in answering those questions.
Simply saying that the inmate is sentenced to death for murder does
not begin to answer the important questions regarding what kinds of
murders result in death sentences. The Supreme Court has long required
that eligibility for the death penalty be narrowed to something less than
all murders. This requirement is met by some additional finding. See
Brown v. Sanders, 546 U.S. 212, 216 (2006). This additional finding is
called an “aggravating factor” or “aggravating circumstance” in most
states. In California it is a “special circumstance.” In Texas it is a finding
that elevates the murder conviction to the degree of “capital murder.”
For each capital sentence, NPS-8 should ask the specific code section
of the capital offense and the designation of each eligibility factor found,
however the state defines eligibility factors. That would require
instructions for each state, but that information can easily be obtained
from the state attorney general. Using this information for research would
similarly require coding for each state, but that is readily done with
computers. If BJS provides the code sections, researchers can do their own
state-by-state mapping.
Along with the eligibility factors, concurrent crimes and criminal
history are also important in determining which murderers are justly
sentenced to death. The present form provides no information at all on
concurrent offenses that do not result in a death sentence. The
information on priors is limited to a yes-or-no on felonies, whether any
were homicides, and, if so, what type. It would be useful to know what
other felonies a condemned murderer has been convicted of, either
concurrently or previously, particularly violent ones.
The burden of reporting this information would not be large. It only
needs to be done once per case, and there are less than 50 new death
sentences per year nationwide. A shift from marginally relevant
demographic information to pertinent information about crimes and
criminal history would significantly enhance the usefulness of the
product.

Tracy L. Snell
December 12, 2019
Page 3

Thank you for your consideration of this suggestion.
Very truly yours,

Kent S. Scheidegger
KSS:iha