In my experience, most survey questions are indeterminate--even those that ask purely factual questions ("In the past four weeks, what brand of laundry detergent did you use most often?"].

My advice to clients is that the data is usually only meaningful when comparing responses-over time, across brands, across demographic groups, etc.

A subtlety that is almost always ignored when discussing the death penalty is: as opposed to what? For example, I would support life imprisonment without parole over execution, if I were given that choice. But one reason (I think) that Americans reinstated the death penalty is because they had no confidence that these criminals would otherwise stay in jail forever. Consider "Tookie". The people who protested his execution actually thought he deserved a Nobel prize! If those people had succeeded at saving his life, their next quest would have been to get him out of prison. In fact, these opponents of capital punishment are the best argument for it.

It seems to me that a better phrasing, at least if you just want to find out how many people are unconditionally opposed to the death penalty, would be to ask "are you ever in favor of the death penalty for a person committed of murder."

But one reason (I think) that Americans reinstated the death penalty is because they had no confidence that these criminals would otherwise stay in jail forever.

Hey, not all Americans share that opinion. In my home state, Wisconsin, we abolished the death penalty over 150 years ago, and haven't seen much reason to bring it back since. Even when we did have it, Wisconsin juries and judges were notorious for finding ways to avoid imposing it.

If that's a reason for supporting the death penalty, I'm surprised there aren't more Europeans in favor of it; a system where a life sentence works out to 14 years? What's up with that?

The question reminded me of a local radio talk show host who, on more than one occassion, stated, "Everyone who commits premeditated murder should be executed."

Each time I heard that I resisted the temptation to reach for my cellphone and say something like this:

"I am a death penalty prosecutor. I have been responsible for handling a dozen capital habeas corpus cases. I have argued capital cases on behalf of the State in front of both the state Supreme Court and the Ninth Circuit Court of Appeals. I have actually been at the state prison 6 times to witness executions. On one of those occassions, I literally stood next to the executioner as he performed his duties."

"I think I have earned my capital punishment bona fides. I also think your position is insane."

The Gallup question has the same infirmities as this talk show host's "Let's kill them all" belief. There has to be a way to save the death penalty for the worst of the worst, while also expediting the process to give closure to the victims' families. Frankly, I think 12 years after the adoption of the AEDPA and the ensuing caselaw on the issue, we will see the process speed up, but only slightly.

I remember very little of my bar review class (having been admitted 16 years ago) except for one snippet of USC Professor Charles Whitebread's lectures on criminal law.

I will paraphrase the professor, but I remember him saying that the Multistate will always have a criminal law question in one of two basic fact patterns:

In one, you have a loving couple, devoted to each other. The husband has an excruciating illness. The doctors are not helping. The drugs are not helping. The husband begs his wife to kill him to put him out of his misery. She refuses. He begs again, and again--and gets weaker and weaker and is in more and more pain--until finally, out of compassion, the wife takes a gun in the house and shoots her husband dead.

In the other, there is a predator, who has raped and murdered a small child. But despite what the dead child's family believes to be overwhelming evidence, the jury inexplicably finds the perpetrator "not guilty." As the perp leaves the courtroom, he stops by the grieving parents and says, "I killed him. And I will kill again."

The father, having heard this goes home, gets a weapon, tracks down this monster, and shoots him dead.

What are these two shooters guilty of? Murder.

Why? (to directly quote Professor Whitebread) "Because it's the bar exam."

I wonder, if these hypotheticals were real, whether this radio talk show host would really think either of these two murderers deserves the death penalty.

I know I don't. And that's the problem with the Gallup question. It is overinclusive--and even though I am a death penalty prosecutor, my response to the question would have to be, "Not in every case."

I agree with Shivering Timbers that this might be a good baseline question, but I also think that there can and should be followup questions to explore the nuances.

Looking at the polling data, I am was surprised at the 7 point jump in capital punishment support in between March and December, 1972, from 50-41 support in March to 57-32 support in December. I have no idea as to what would cause that kind of spike--but the result can hardly be described as an anomoly, given both prior and subsequent polling numbers.

I am too young to remember 1972 all that clearly, but for those with long memories, what changed in 8 months?

The question is ambiguous, but the ambiguity is in what the reader reads into it. Part of what is being read into it reflects the controversies of the day, which would be part of what is being measured.

Unlike many polling questions the question is not leading. There is a danger in adding more specifics that the question would bias the answers.

I will agree that for the answers to be truly informative it does need follow up, but the questions in a meaningful follow up would not have been the same 30 years ago as they are today.

I'm in favor of the death penalty for war crimes, crimes against humanity, and some forms of high treason. I'm undecided on the death penalty for people who commit murder while under a life sentence (either by breaking out of jail, while in jail, or by orchastrating the murder of another while in jail through a third party). I'm otherwise uniformly opposed to the death penalty. How do you think I should answer that question?

I'd probably say no.

This is like parsing ala Clinton and "it depends on the definition of is". Are you in favor of the death penaly for murders? PERIOD! What part about "is" don't you understand?

No, because this question is actually very ambiguous, as Orin pointed out. The only thinking people who can answer the question with a simple yes or no are those who believe the death penalty should be given to all murderers and those who think the death penalty should never be given. Fortunately, I fall into one of those categories, but most people hold a more nuanced view.

Dave N: I am too young to remember 1972 all that clearly, but for those with long memories, what changed in 8 months [to cause a ][7 point jump in capital punishment support in between March and December, 1972]

Furman v. Georgia [death penalty is cruel and unusual] was decided on June 29, 1972

I don't find the question ambiguous at all -- it asks whether people who're convicted of murder should be executed.

That was my reaction also. The question seems designed to identify those who are philosophically opposed to the death penalty, such as myself, and those who are not.

I can easily answer no, and the number of people who answer no should generate a meaningful statistic.

Dave N,

I would have to disagree with you on the appropriatness of disallowingexecution in your second example. Revenge seems like an entirely appropriate factor.

IOf course I would also say the first isn't even murder in the sense of unjustified killing. To use an even more extreme example in this vein I use the German cannibal case. The 'victim' volunteered to be killed and eaten, I cannot see even that as murder.

The question doesn't seem ambiguous to me, if taken completely literally. It asks about "a person". So if the respondent thinks there is any one person convicted of murder who deserves death, he should answer yes. Of course common usage is much more slovenly than that; and questions in opinion polls should be framed in accordance with common usage, not according to the sort of strict parsing that only a computer programmer is likely to do. But even if the question were to be taken literally, this wouldn't be a bad way to ask it: if you think there is one person convicted of murder who deserves death, you almost certainly think there are more. Conversely, if it's not to be taken literally, then fine distinctions in the wording don't much matter: most people will ignore them and just assume that the question is the usual one of whether to eliminate capital punishment entirely. (Several commenters here have agreed that the question is ambiguous, but there hasn't been any debate about what the question really is intended to get at, so it's not that ambiguous.)

What's the problem with the death penalty? It's not like the murderer is going to live forever, right? The State is simply readjusting his time remaining.

Also, the Catholic church [and many other churches] believe that it's wrong to execute even the most vile murderers. But why? If they believe what they teach, then someone on death row is in the best possible position: plenty of time for remorse and confession, then the fast track straight to heaven. Win-win. It's all good!

Chuck C,

Thank you. For some reason I didn't think of the most obvious.

And this is why I seriously distrust poll results of all kinds....

Andrew Janssen: You statement presupposes that European laws actually reflect popular opinion.

In the UK--which has abolished the death penalty--surveys at least as recent as 1999 shows 70% in favor of reinstituting capital punishment.

That European law makers do not wish to create laws to reflect popular opinion may or may not be a good thing in this case. In the general case, I find that situation to be a good excuse to avoid reliance on European or European-based laws for the interpretation of US law.

At 3.28.2008 2:00pm Smokey wrote:

Also, the Catholic church [and many other churches] believe that it's wrong to execute even the most vile murderers.

That's not quite right. I won't go into all the nuances, but basically, the Catholic Church still says that the death penalty is legitimate when necessary and when the bad doesn't outweigh the good. Then it goes on to say, with various qualifications, that the situation in the modern West is such that no case meets the test. But the death penalty is not taught as per se bad, and is not excluded for other places and other times. (In particular, the "other times" angle ensures that the Church can keep his teaching consistent with the last 2000 years of defending capital punishment -- the principle is still the same, but the application has changed.)

Also, the above are generally Catechism, i.e., binding teachings, but some of the stronger anti-penalty rhetoric came from John Paul II's personal (non-binding) writings.

Because the application of general principles to the American situation today is a matter of prudential judgment, Catholics may undoubtedly disagree with the conclusion as a matter of American policy, and still remain in good standing. So those who say that the Catholic Church is totally anti-death penalty, or that pro-death-penalty Catholics are defying their Church, are mistaken.

Here's another question:

How would the average American's interpretation of that question have changed since 1937? Would it have been understood to mean something different by most people back then?

Looks like investigation and trial opf charles Manson were 1969 and 1970, from a quick look at Wikipedia. Strike that theory.

In WWII, around 60% of the men in the U.S. Army were drafted. Some of those men died. We justified that by saying it was for the good of the country. I agree.

We should try very hard to see that people we put to death are guilty, but when a mistake happens, and it will, it can be justified the same way.

But, to be real value, it needs to be done quickly.
Thomas Jefferson had the right of it:

Whenever sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.

Of course, as Orin noted in an earlier post:

"Second, as a matter of constitutional law, a majority of readers think such a law [imposing the death penalty for the rape of a child] is constitutional. Specifically, 54% of readers think such laws are constitutional, 20% thinks they are unconstitutional, and 25% doesn't know. Of course, it's not quite clear what this measures, as I didn't specify if I was asking for views on constitutionality that are normative (what the Justices should do), descriptive (what existing law requires), or predictive (what the Justices will do)."

So he's obviously well aware of the difficulties with conducting opinion polls...

TechieLaw:

Unfortunately, because of the workings of the Internet, there's really no way for me to confirm that you are who and what you say you are.

I fully respect that—though I do take people at their word. For example, Anderson claims to be a liberal attorney in Mississippi. I had always thought that "Mississippi" and "liberal" could not be used in the same sentence, let alone used to describe somone. For the most part, I still believe that "liberal Mississippian" is an oxymoron. But I believe he is what he he says he is.

Seriously, I blog semi-anonymously because the positions I take are my own—and do not necessarily reflect the views of the elected official who has the power to fire me without cause since I am exempt from civil service.

That said, I post here enough—and give enough "clues"— that someone without a life could probably unmask me. I have never lied on the VC even as I have masked, but I understand and respect your skepticism.

However, I would ask that you trust me. I am exactly who I say I am. Oh, and thanks for the compliment.

Not every poll has to answer every question about an issue. As others have pointed out, this poll gives a measure of the strength of support for the death penalty over time. That's enough to justify its existence.

The public is dramatically ignorant of how death penalty cases really work. For example, I remember seeing surveys that asked what they think might mitigate against imposing the death penalty for any given murder. "Self defense" was the top answer. The lawyers reading this know that if you kill someone in self defense, it's not even a crime.

It is equally true that European democracies are generally representative democracies where the legislators are ahead of public opinion.

In other words, elitists out of touch with their constituents. We Americans might, at times, think our elected representatives out of touch. Europeans like Litigator-London are actually proud of that fact.

Elliot Reed,

Actually, I agree with Edmund Burke, "Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion."

However, Burke is also quoted as saying, "In effect, to follow, not to force the public inclination; to give a direction, a form, a technical dress, and a specific sanction, to the general sense of the community, is the true end of legislature."

I tend to agree with the former more than the latter. That said, the arrogance of presuming that legislators are necessarily "ahead of public opinion" is astounding.

Dave N: I do not think our legislators are unaware of what the public thinks - we have public opinion polls and a free press,you know, as well as more informative TV than the USA enjoys. Most spend at last a day a week in their constituencies (districts). But they are elected and paid to exercise good judgment on such issues.

Quite apart from anything else public opinion can be manipulated - how else did George W. Bush get re-elected ?

Litigator-London Quite apart from anything else public opinion can be manipulated - how else did George W. Bush get re-elected?

Don't you remember whom he ran against? Sometimes that makes re-election much easier.

"unusually unclear"?
I got a call asking if I trusted General Motors.

Trusted them to do what? For what? About what? No, said the caller, just, "do you trust them?"
I eventually declined to answer, it being a dumb question.

However, it is absolutely certain that the number of answers one way or another were used to demonstrate some absolute something or other.

Nuts.

How many polls on the public's view of Bush's conduct of the war ask if the individual being asked thinks it should be conducted far more actively and aggressively? Nope. Any answer other than "I think it's great!" is taken to mean opposition to the war.

I'd like to see a clear poll question, but my guess is that those commissioning the poll wouldn't want it.