33 Vand. L. Rev. 71 (1980)
Execution Without Trial: Police Homicide and the Constitution

handle is hein.journals/vanlr33 and id is 85 raw text is: Execution Without Trial: Police
Homicide and the Constitution*
Lawrence W. Sherman**
The national debate over the State's right to take life has been
sidetracked, in a sense, on the issue of capital punishment, or
more precisely, execution after trial. Far more deadly in impact is
the body of law permitting execution without trial through justified
homicide by police officers. In 1976, for example, no one was exe-
cuted and 233 persons were sentenced to death after trial, yet an
estimated 590 persons were killed by police officers justifiably with-
out trial.I Even in the 1950s, when an average of seventy-two persons
were executed after trial each year,2 the average number of police
homicides was 240 a year, according to official statistics,3 and 480 a
year according to one unofficial estimate.4 Since record keeping
began in 1949, police actions have been by far the most frequent
method with which our government has intentionally taken the lives
of its own citizens.
The significance of police homicide is not, however, derived
solely from its frequency. Equally important is the nature of the
crimes that justify police use of deadly force. Unlike executions after
trial, executions before trial are not limited to extremely serious
crimes such as murder, rape and treason. Twenty-four states follow
what is thought to be the traditional common-law doctrine, which
permits the use of deadly force whenever necessary to prevent a
felony or to arrest someone whom an officer has reasonable grounds
* This writing was supported in part by the National Institute of Mental Health, Center
for Studies in Crime and Delinquency. Fred Cohen, David Wukitsch, Michael Gottfredson,
Eva Sherman, Mark Blumberg and Robert Langworthy contributed ideas and assistance.
** Associate Professor of Criminal Justice, State University of New York at Albany.
Director, Project on Homicide by Police Officers, Criminal Justice Research Center, State
University of New York at Albany. B.A., Denison University, 1970; M.A., University of
Chicago, 1970; Ph.D., Yale University, 1976.
1. The official death records of the National Center for Health Statistics, preserved on
tape, show a total of 295 deaths by legal intervention of police for 1976. Independent tests of
the death record data, however, reveal that they are rather consistently under-reporting police
homicides by about 50%. Sherman & Langworthy, Measuring Homicide by Police Officers
70 J. CRIM. L. & CRIMINOLOGY 546 (1979). On the number of post-trial death sentences, see
U.S. DEP'T OF JUSTICE, LAW ENFORCEMENT ASSISTANCE ADMINISTRATION, NATIONAL CRIMINAL
JUSTICE INFORMATION AND STATISTICS SERVICE, CAPITAL PUNISHMENT, 1976: NATIONAL PRISONER
STATISTICS BULLETIN SD-NPS-CP5 at 3 (1977) [hereinafter cited as CAPITAL PUNISHMENT
STATISTICS].
2. CAPITAL PUNISHMENT STATISTICS, supra note 1, at 13.
3. VITAL STATISTICS OF THE UNITED STATES, 1950-1959 (Annual).
4. See note I supra.

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