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DEATH,
DETERRENCE, AND REFORM
By
Jay B. Gaskill
Introduction to the
Revised Article
Yesterday, June 25th,
the
I find myself
reluctantly agreeing with the high court on the sole policy grounds that the
death penalty should be reserved for treason, actual homicides or terrorism the
object of which includes murder. But I
also disagree with Senator Obama and the others who
still repeat the conventional wisdom that the death penalty is not a deterrent.
I spent my legal
career defending criminals, many of whom killed someone, and I have vigorously
opposed the death penalty in their individual cases. But it gradually became bright line clear to
me that the possibility of being sent to death row and living under threat of
an actual execution, many of which are actually carried out, has saved many, many lives by staying the hand
of would-be killers. This radically
changes the moral calculus.
As the authors of a
seminal 2005 Brookings-AEI study, put it in the
executive summary of their work (linked at the end of this article):
“This evidence
greatly unsettles moral objections to the death penalty, because it suggests
that a refusal to impose that penalty condemns numerous innocent people to
death. Capital punishment thus
presents a life-life tradeoff, and a serious commitment to the sanctity of
human life may well compel, rather than forbid, that form of punishment.”
What I wrote in
2006:
“Morales”, The Poster Child for a Better Needle?
Bless those sincere death penalty opponents who are grounded
in traditional morality. They have the
gift of intellectual honesty. As Sister Prejean – of
“Dead Man Walking” fame – said in
The death penalty is cruel – to those who don’t deserve it -
but it is not unusually so when compared with other punishments in the same
class, i.e., other forms of execution. The United States Supreme court will
never outlaw execution in all its forms.
In the latest lethal injection controversy (in the Morales
case), death penalty opponents are playing chess: Move One was to press for
lethal injection as “more humane.” Move Two was to press to mandate the
presence of a medial professional on scene.
Move Three was to get the physicians to back out. Checkmate? Hardly.
The goal is not to save a killer’s life, but only to minimize his pain. San
Quentin could get by with a vet.
Those humanitarian souls who oppose the death penalty lack a
sufficient grasp of the workings of the brutal mind. Here’s the hard truth: Whenever a region is
infected with a critical mass of brutally minded, homicide-prone males (the
sub-group is 95% male), the genteel rules of drawing room justice (“Use a gun
and go to your room” or “Kill somebody and go to another room”) are
ineffective.
I no longer oppose the death penalty because of the answer
to one question: What if the legal execution of 50 actually guilty murderers
worked to prevent the illegal slaughter of 800 actually innocent men, women and
children?
If the death penalty deters murders at all, the moral
calculus changes dramatically.
There is a suggestion that the 9th Circuit’s intervention in
the Morales execution might create a de facto
Last year, the Brookings Institute (hardly a bastion of
right wing thinking) and the American enterprise Institution jointly published
a study (“Is Capital Punishment Morally Required? The Relevance of Life-Life
Tradeoffs”, March 2005). Here’s the relevant pull quote: “Recent evidence
suggests that capital punishment may have a significant deterrent effect,
preventing as many as eighteen or more murders for each execution.”
The people at large, the ones who work, protect their
children, pay taxes and vote, have already got it
figured out. Society already has been
infected with a critical mass of brutally minded, homicide prone males. Many of
these brutal minds are functionally undeterrable by
the threat of more prison time. Some are deterred by the prospect of death row,
and some is better than none. An increase of as few as 6 murders per 100,000
would represent roughly another 1,000 murder victims. Can we really afford
another death penalty moratorium?
As I wrote in 2005:
“Tookie”
Williams, the Poster Child for Reform
The execution of Stan “Tookie”
Williams, founder of the archetypally violent street
gang, the CRIPS, the cold blooded killer of four
innocent robbery victims, the author of children’s books (of very limited
circulation) marks the most egregious example of delay abuse in the
administration of the death penalty in the popular literature; Mr. Williams
lived two and a half decades on death row because society could not summon the
will to execute justice. As one
commentator pointed out that was 24 years of life denied to Mr. Williams’
victims.
And here is the rest of my analysis…
DEATH,
DETERRENCE, AND REFORM
There is a solution for
As I demonstrate in the following piece, deterrence is a
very real effect of the death penalty (when administered regularly and
promptly) that saves thousands of lives.
The next time someone is carjacked and shoved in a trunk, or
held up and (having seen the face of the robber) is cowering under a counter,
consider this:
He or she might well be spared because the death penalty is
far, far more important to avoid than a decade behind bars with one's fellow
gang members.
The notion that the death penalty does not deter murders is
a falsehood perpetuated by two groups: well meaning dupes and manipulative
ideologues.
A huge legal process speed-up is well within our
capabilities, and the required resources would be a drop in the bucket compared
to other state and federal expenditures.
So, why has reform been stalled? Too few people get
it. The current delays are not legally necessary. They
represent a tacit conspiracy between out-and-out death penalty opponents (I
should know -- I once was among them) and a second group (I call them the
process junkies) for whom perfect legal process should be pursued as if it were
a moral imperative equivalent to saving the lives of Innocent murder victims.
We can do much better....
The Case For Realism
Most of my former colleagues oppose the death penalty, and I
am proud of their tireless efforts on behalf of individual clients. On a public policy level, however, death
penalty opponents are usually heard but not heeded, because a super majority of
voters, most places, most of the time, still believe
that society still needs to be able impose the ultimate sanction. For reasons
that follow, I have come to qualified agreement with the general view.
There are general three schools of thought on this topic,
but most policy is made by only one of them.
School One:
Retribution Idealists, i.e., those who feel that any
deliberate, unlawful taking of a human life warrants the death penalty as a
moral imperative. Made up predominantly of the crime victim lobby and
frustrated “gung ho” police officers, opinion in this school runs from advocacy
of drastic procedural shortcuts to “kill ‘em all.”
School Two:
Redemption Idealists, i.e., those who feel that all persons are
redeemable therefore none may ever be executed no matter how heinous the offense. Consisting of almost all of the public
defense community and clergy, opinion runs between advocacy
of endless procedural obstacles to a strict “execute no one” policy.
School Three:
Persuadable Realists. These
are the actual policy makers. The realists consist of most legislators, jurists
and attorneys (including most Bay Area prosecutors) and a plurality of police
officials. In this group, policy is
driven by practical considerations with the overall objective of achieving the
maximum feasible protection of the population from deadly violence via
deterrence and the permanent removal of deadly predators. Classic cost
effective analysis is often used, causing prosecutors to concentrate on the
“worst of the worse.”
Within the realist group, reform advocates are currently
advancing the following agenda:
Reform is stalled because of the convergence of three
forces:
I’m a persuadable realist. The available evidence persuaded
me that the death penalty can deter a significant percentage of deliberate
homicides, especially the subgroup in which there is some opportunity to
reflect before killing. Retribution may be a weak moral justification for the
penalty, but saving innocent lives is not.
And I am a reform advocate. Only a robust, well funded
defense can shrink the unconscionable lead times between charge and final
resolution, (reducing the cruel years spent on death row), expose prosecution
errors and police misconduct, weed out the weak cases, and protect the truly
innocent.
The
Deterrence Question
The deterrence effect of the death penalty for deliberate
killings has been widely studied with allegedly “inconclusive” results. A
number of experts and organizations still claim that the death penalty doesn’t
work. But no respected study actually rules out death penalty deterrence, and
some experts have found strong indications of a deterrence effect.
On this topic, many of my good hearted humanitarian friends
are deeply out of touch with the common wisdom. I have listened for three
decades to all the arguments that the death penalty is not a deterrent. Death penalty opponents usually talk about
crimes of passion, pointing out that the jealous husband was too filled with
rage to give a thought to penalty, or on the homicidal maniac who is on a
suicidal run. This is all beside the
point. As a realist, I have come to understand that that death penalty can
deter certain murders, especially for the criminals who have gotten used to prison
life. Indeed, several categories of criminals are capable of being deterred by
little else. Think of those carjackings where the victim is in the trunk. Some are shot, others not. Many criminals
think of the consequences, especially when they are as simple and vivid as the
prospect of eventual execution. In general, the death penalty deters at least
some murders within the entire class of killings where there is a moment to
reflect before killing. This includes
most drug dealer turf shootings, gang warfare, witness killings, robbery
murders, and so on.
The most persuasive recent studies have been conducted by
experts with formal training in economics. The field of economics is often
called the “dismal science” because of its tendency to generate honest
assessments, in spite of political hopes and expectations. Many death penalty
opponents resist the basic assumption of economic science that, over time,
incentives and disincentives will change behavior. Regrettably, an anti-death
penalty bias has introduced an element of intellectual dishonesty into the
deterrence debate. Evidence that the death penalty “disincentive” produces
genuine results is ignored, marginalized, or denied because executions are
thought to be immoral under all circumstances. “Don’t confuse me with the facts” is the motto of the
true believers.
When the overall data are looked at square on, the
conclusion is inescapable: The death penalty deters some murders. Having been
responsible for saving clients lives, I am not at all enthusiastic about
executions, but the murders of innocent people are far more immoral than the
judicially ordered execution of culpable murderers. Killings affect the
community at large, and the problem calls all of us to get outside our biases
and roles.
I find the evidence in favor of the death penalty’s
deterrent effect on homicidal behavior to be highly persuasive, leaving aside
the more difficult issue of measurement of the power of the effect on a given,
demographically mixed population. The so called side-by-side studies that
purport not to reveal any deterrent effect (for example comparing death penalty
enforcing state A with non-death penalty state B over the same time frame) fail
to normalize for demographic differences.
There are always higher “crime prone” sub-populations in any geographic
area. At any given moment, virtually all states differ in political and social
attitudes, police funding and activities, and in the detailed operation of
their respective criminal justice processes.
The temporary imposition of a well publicized death penalty
moratorium in a given jurisdiction provides a better quasi-controlled
experiment, particularly when demographic factors remain relatively stable over
the sample period. And, in these
samples, the larger the population that is included, the less that pockets of
demographic variations will skew the outcome.
That said, there can be demographic and
cultural changes with time.
With those qualifications, analysis of the available data
has persuaded me that the death penalty for murder may have saved a significant
number of lives over the last decade in those jurisdictions where it was used.
If my analysis is correct, it follows that any death penalty moratorium,
however well intentioned, will come at a high social cost.
Several studies and
trends have caught my attention:
“Journal
of Applied Economics.”
4/01, Vol 33, N 5, p569 -- p576, “Execution
Moratorium Is No Holiday For Homicides; Execution and deterrence: a
quasi-controlled group experiment.” Professors Dale O. Cloninger and
“The (
Professor Cloninger: “ . . . (Our recent) study is but another on a
growing list of empirical work that finds evidence consistent with the
deterrence hypothesis. These studies as
a whole provide robust evidence -- evidence obtained from a variety of
different models, data sets and methodologies that yield the same conclusion.
It is the cumulative effect of these studies that causes any neutral observer
to pause.”
“Does Capital Punishment Have a Deterrent Effect: New
Evidence from Post-moratorium Panel Data”, Dezhbakhsh econhd@emory.edu), Rubin
(prubin@emory.edu) and Shepherd (jmehlho@emory.edu), January 2001. Located at
userwww.service.emory.edu/~cozden/dezhbakhsh_01_01_paper.pdf January 2001.
Emory University
Economics Department Chairman Hashem Dezhbakhsh and Emory Professors Paul Rubin and Joanna
Shepherd:
“Our results suggest that capital punishment has a strong
deterrent effect. An increase in any of
the probabilities -- arrest, sentencing or execution -- tends to reduce the
crime rate. In particular, each execution results, on average, in eighteen
fewer murders -- with a margin of error of plus or minus 10.” Their data base
used nationwide data from 3,054
“Pardons, Executions and Homicide”, H. Naci
Mocan (mmocan@carbon.cudenver.edu) and R. Kaj Gottings
(rgitting@carbon.cudenver.edu), October 2001, located at
http://econ.cudenver.edu/mocan/papers/deathpenalty1007.pdf
Overview of
“Long term trends, Homicide Victimization, 1950-99”, Bureau
of Justice Statistics, Source: FBI,
Uniform Crime Reports, 1950-99, (ii) Crime in the United States -- 2000, Section II -- Crime Index Offenses Reported, “Murder and
non negligent homicide”, FBI, Uniform Crime Reports, “Number of persons
executed in the United States, 1930-2001”, Key Facts at a Glance, Executions
Bureau of Justice Statistics, Source: Capital Punishment 2000, December 2001 at
http://www.ojp.usdoj.gov/bjs/glance/tables/exetab.htm
Between June 1967 and January 1976, there was an effective
national moratorium on executions (see the
Analysis of
Recent California Experience is strongly suggestive of a
deterrent effect. Between 1930 (the first year for which we have reliable
records) through 1976 there were 292 executions (3,859 in the
In 1976 the US Supreme Court effectively overturned the
death penalty laws for several states (including
The Bird court reversed 61 death cases. From 1967 through
1991 there were no
No one was executed in
I am well aware of the other studies and statistics that are cited to the effect that there is no conclusive evidence of deterrence. So what are we “realistic persuadables” to make of all this?
Deterrence can be measured in a number of ways:
To summarize our problem: No perfect controlled experiment
has yet been designed on a significant scale to produce a precise measure of
the deterrence effect of the death penalty because there are too many
variables: How much is the penalty actually used? What is the street level perception of the death
penalty’s use? What is the arrest rate? The clearance rate? What is the time lag between charge and
execution? [The median stay on
The major problem with the statistical approaches (b) and
(c) above is that demographics and other population factors shift with
time. For example, the release into a
population of violent criminals can skew numbers in favor of a homicide rate
increase, masking any deterrence effect.
But the larger the sample, the more the deterrence effect tends to show
itself. The US and
Social Cost
Analysis
A social cost calculation is possible, based on the value of
a human life in different circumstances.
Here is the formula:
L = [D s] – [E p]
To solve for “L,” we multiply the number of lives saved by
deterrence times the value “s.” From that number, we subtract the number of
executions times the value “p.” L is a measure of the success of the death
penalty in valuable lives.
In other words, whenever “L “is a positive number, net
valuable lives are saved. If “p’ (the value of the life of the killer) is set
at zero, then the death penalty always saves net lives unless “D s” (value of
lives saved by deterrence) is zero. This never happens (unless we perversely
place s, the value of a single life saved, at zero), because we can always find
examples of criminals who were deterred.
Some would have us assign the life of a convicted killer exactly the same
value that of a saved life. [I think this is fairly perverse. When “p” and ‘s ‘each = 1, we have a moral equivalence between killer
and victim.] But even
in that calculation, the death penalty saves valuable lives because a tiny
deterrent effect produces a net savings of human life whenever “E” is a small
number. Only a minuscule percentage of all homicide convicts are
actually executed.
For example, at a rate of 6 homicides per 100,000, a
jurisdiction with a population of 30 million people would suffer 1,800
homicides in a year. Let’s assume 16 are
executed in a given year (which is more than the total number
Only if the value of “p” is grossly exaggerated can that
calculation outcome be changed. If
effect, the true-believer death penalty opponents are assigning an infinite
value to p, the life of the killer. This
may or may not be good theology, but it is terrible public policy.
Let’s pick a more realistic number for p. Assume the value
of the life of a convicted death eligible killer is reduced to p=.5, (a
generous value considering the value most Californians would assign). If only 9
murders were deterred in the last hypothetical, society would still be ahead.
And when the reduced penal consequences to the would-be killers are taken into
account (after all a murder deterred is one less killer, too), the societal
balance sheet is not even close.
Whenever the value of the convicted killer’s life is reduced
from p=1, a
very, very weak deterrence effect, one measured by a handful of individual
cases, always demonstrates a net social benefit.
But the real deterrence effect of the death penalty is undoubtedly
stronger. The studies referenced and
Deterring
Violence-Prone Recidivists
Not all sub-populations are equally deterred. Criminally
prone males do most murders. Educated people with a lot to lose (i.e., most
death penalty opponents) are deterred from killing each other by a moral code,
coupled with the prospect of shame, arrest, and prison. Subtract the pro-life moral code, the shame,
and add gang affiliation and/or long prison experience. Move this
sub-population into an urban area and ask yourself the question: Will the
prospect of a return to prison deter all these men?
For example, at 113 homicides during 2002, the city of
A critical moment comes when a prison habituated felon, who
is preparing to engage in another crime, chooses to bring along a loaded
pistol; a second critical moment comes when he makes the decision to pull the
trigger or to refrain from that act. We
need to ask: What disincentives will get the attention of this sub group of
criminals? In the current punishment scheme, what is there beyond a term for
years? There is only life incarceration
without parole and, finally, the threat of execution.
Even for those undeterred by the prospect of an additional
prison term, some criminals do hesitate when faced with the prospect of a long
stay on death row, separated from the general prison population, living with
the hovering ghost of the “Green Room.” As more cities like
I’m well aware of the psychological and budgetary costs of
administering the death penalty. The
cases are hard on everyone in the system, especially for those assigned the
responsibility of conducting an effective defense. If it were just a question of working
conditions in the legal community from which I’ve graduated, I would want to
abolish the penalty. But the social
costs are too high.
REFORM
Obviously, the death penalty process needs reform.
Extraordinary attention needs to be given every possible instance of factual
innocence. But careful jurisdictional and situational distinctions must be
made. Executing the truly innocent is very, very rare in this country,
especially in cases brought within the last fifteen years in the more
enlightened jurisdictions that provide for an adequately funded public defense
system. Strident death penalty opponents
have conflated the “error” statistics. Cases reversed for penalty phase legal errors fall far
short of exoneration. Cases reversed on guilt phase error because otherwise
reliable but illegally seized evidence was introduced,
also fall short, even when the retrial of a weakened case results in a hung
jury and dismissal.
Some advocates attempt to shoehorn the
“guilty-but-misunderstood” into the niche occupied by the factually
non-culpable. Of course there is a huge
difference between the factually innocent suspect who is misidentified in a
lineup and goes to the executioner for a murder some miscreant, still at large,
has committed, and the case of the actual killer who gets a lethal injection
without having had an adequate courtroom exploration of child hood deprivation,
other relevant social history mental incapacity or derangement. These
mitigation errors are certainly important, but they do not support the claim
that the “innocent” are routinely being executed.
My own state of
The appellate delays for prisoners on death row are cruel in
themselves, running about 13 years in
Death penalty defense legitimately takes more time than
routine criminal defense. This is partly because no one wants an innocent
defendant to slip through and because the appellate courts do look at everything
with great care. But most of the delay
is because the law does not permit automatic execution. In other words, there is no crime or set of
crimes so heinous that execution can be the automatic penalty once guilt is
proven. “Mitigation” must always be
considered (though ill defined) and the capacity to grant “mercy” (the criteria
for which can’t arbitrarily be limited) must always exist. This tends to put
the defense into a “no stone unturned” hysteria. Was it the bad mother? Did the kid get bonked on the head at
five? Where are those medical records
from
The delay issue has been distorted by the tactics of some
true believers. This is the well-meaning
group of advocates who, for religious or ideological reasons, see the struggle
against the death penalty as a life calling, something on the scale the rest of
Americans might reserve for putting an end to the terrorist threat. For this group, especially in a heinous
murder case, delay is a calculated goal.
Every year of delay is another year the client is alive. The ultimate political objective is to
undermine the public’s willingness to put up with the penalty by dragging the
process out for decades, running up the cost, hopefully delaying things until
the now-maturing serial killer begins to write poetry, lands a spot on Sixty
Minutes, and generates a huge candle-bearing fan club. If the governor fails to grant a commutation,
maybe the client will die of natural causes. In this case, the client’s death
is victory.
A comment about process versus results.
In this arena, as in so many others, we can observe the usual suspects playing
their respective roles: (1) The “ringers” the ones for whom process is just a
tool to obstruct the goal --forever if possible; (2) the process junkies, for
whom process is so important that the goal is sometimes forgotten; (3) the
honest brokers who run the process in order to achieve the goal; (4) the
goalies, who have figured out the right outcome and would just as soon dispense
with the process if possible. A simple
recommendation: Leave it to the honest brokers, weeding out the rest; fund the
process to accomplish maximum speed and reliability, then
get out of the way.
Of course, such answers are easy to prescribe, complex to
implement. Legal definitions about what
warrants the death penalty and what might avert it could be made much more
clear and bright line. All cases need to be expedited by a realistic but tough
schedule. The resources for a vigorous, credible defense are essential to the
speed and reliability of the process.
But adherence to any calendar requires that the defense in many
jurisdictions must receive augmented funding. Appellate delays because the
court delays preparation of the needed records for review and drags its feet in
assigning defense counsel are common but inexcusable. All this can be changed
with tough rules and sufficient resources.
Here I notice a virtual alliance between the true believers in the
legislative process and the “kill ‘em now” block,
both of whom are reluctant to provide the resources needed to get to finality
within a reasonable time, the former for the obvious reasons and the latter out
of hostility to the defense function. The state-level appellate process needs a
sharp prod to move death penalty cases ahead of the pack.
Given the various legal constraints, we might reasonably
expect a typical state death penalty murder case to go from charge to penalty
trial in less than two years, and from there to final state appeal decision in
another two. With more resources for investigation, defense services and
appellate review, even this time frame could be reduced sharply. Saying this is easy, but doing it requires
staffing, will, and a general change in the justice culture. The federal system
could be affirmatively helpful in providing technical support, and setting up
guidelines. Jurisdictions that follow such hypothetical federal guidelines (I’m
thinking time-lines, standards of performance, and resources) could be left
alone by the district federal courts, as a matter of explicit policy, except in
the most rare and extreme situations.
Innocence and
Non-Uniformity
As a society, we should never be willing to sacrifice the
lives of innocent murder victims on the altar of an ideology that assigns an
unreasonably high value to the lives of convicted killers. That acknowledged,
we can also notice that deterrence of a certain percentage of murders does not
seem to require that a very large number of death eligible murders actually be
executed. As a practical matter,
prosecutors use a cost effective analysis in pursuing the ultimate penalty. Weak
cases aren’t worth the time and effort.
As a result, the number of executions at no time have
amounted to more than a tiny percentage of all murders. Yet many prospective murderers do hesitate,
deterred by the very risk of life on death row and the bare possibility of
facing execution.
Even if it were not constitutionally required, we should
never constrain the power to grant mercy.
But the price of mercy is a certain non-uniformity of penalty
application. Any individuation of penalty by jurors that is based on
non-quantifiable mercy criteria will produce non-uniform results. So what?
That is as it should be. There
are only two other options: uniform, mandatory death or abolition of the
ultimate penalty altogether. I can’t abide either and all the polls for the
last half century suggest that a super majority of the voting public can’t
either. Arguments about the alleged
arbitrary and capricious nature of the death penalty’s application should be
directed solely to the active use of invidious criteria by the decision
makers. Mercy should never constitute an
invidious criterion in a death case.
The protection of the factually innocent convicted who have
somehow slipped through the protracted review processes is the ultimate
responsibility of those who exercise the chief executive power in the relevant
jurisdictions. State governors (and even the President of the
I would limit such a triage inquiry to two narrow questions:
Mitigation and mercy would be separate questions, left to
others. I would use a simple test: Is either (a) or (b) still subject to
rational dispute? The commissions would
be budgeted and empowered to conduct witness interviews and tests. The defense would be invited to present its
views and to make the death row client available for interview as well. There
would be three possible outcomes: (1) The case is
dropped back into the death row pool. (2) The case is pulled out of that pool
for further review and examination. (3) The case is referred to the executive
for commutation to life imprisonment.
We would quickly discover that the great majority of death row cases in the great majority of jurisdictions would not meet the “still subject to rational dispute” test as to actual legal responsibility for unlawfully taking one or more human lives.
▼
DETERRENCE
AND
THE
MORAL CALCULUS –
THE
BOOKINGS – AEI STUDY
In 2005, the
Brookings Institution and the AEI released an
important study of the death penalty and the deterrence effect. (available in pdf format at http://aei-brookings.org/admin/authorpdfs/redirect-safely.php?fname=../pdffiles/php9K.pdf
).
Here is the executive summary.
Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment - potential error, irreversibility, arbitrariness, and racial skew - do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat "statistical lives" with the seriousness that they deserve.”
Conclusion: