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Event Transcript
The Death Penalty Today: Defend It,
Mend It or End It?
Friday, July 21, 2006
National Press Club
Washington, D.C.
Since the Supreme Court
lifted its moratorium on the death penalty 30 years ago, 38 states and the
federal government have reinstated capital punishment.
In recent years, there has been a nationwide debate over the proper
application, morality and constitutionality of the death penalty. Some argue
that there are systemic flaws in its application and that those on death row
are disproportionately poor, mentally ill or African-American. Abolitionists
claim that if the death penalty can not be applied justly in all cases, it
should not exist at all. Some embrace a moral stance that "respects
life" in all its stages and circumstances.
Those in the pro-death penalty camp claim that abolitionists ignore the
individual circumstances of each case and that some crimes are so heinous
that the only appropriate punishment is death. Furthermore, they argue that
the existence of the death penalty deters violent crime.
The Pew Forum, together with the Federalist Society and the Constitution Project,
held an event examining the application, morality and constitutionality of
the death penalty in the United States, focusing on issues such as habeas corpus review,
clemency, the Eighth Amendment and adequate defendant representation.
Speakers:
Samuel Millsap Jr., Former District Attorney, Bexar County, Texas
William Otis, Counselor to the Head of the Drug Enforcement Administration, U.S. Department of
Justice, Washington, D.C.
Kenneth Starr, Dean, Pepperdine University School of Law,
Malibu, Calif.
Bryan Stevenson, Executive Director, Equal Justice Initiative of Alabama, Montgomery, Ala.
Moderator:
Virginia Sloan, President, The Constitution Project , Washington, D.C.
Virginia
Sloan
VIRGINIA SLOAN: Good afternoon. I'm Virginia Sloan and I'm
president of the Constitution Project. This is the fourth in a continuing
series sponsored by the Constitution Project, the Federalist Society and the
Pew Forum on Religion & Public Life, and I'd like to welcome you on
behalf of all three organizations.
The Constitution Project is a bipartisan, nonprofit organization that
conducts public education and research on controversial constitutional law
and governance issues. These issues include our system of checks and
balances, the balance between liberty and security after Sept. 11, judicial
independence, war powers, criminal sentencing and the constitutional
amendment process.
The Federalist Society is a group of conservatives and libertarians
interested in law and public policy. It is founded on the principles that the
state exists to preserve freedom and that it is the province and duty of the
judiciary to say what the law is, not what it should be. The Society seeks to
promote an awareness of these principles and to further them through its
activities.
The Pew Forum is part of the Pew Research Center and its mission is to provide timely information on
important issues at the intersection of religion and public affairs. The
Forum is nonpartisan in nature and does not take positions on any topics.
Though neither the Pew Forum nor the Federalist Society takes positions on
policy issues, the Constitution Project does through our bipartisan
committees of distinguished and expert Americans. We have available for you
out front our consensus recommendations for reforms issued by our Death
Penalty Initiative, which consists of both supporters and opponents of capital
punishment, all of whom believe that the system is badly broken and that the
risk of convicting and even executing the wrong people is too great.
The death penalty is certainly a hotly contested issue, and in recent years
Americans have witnessed a parade of exonerated individuals, including 123
who were sentenced to death. The number of death sentences is down, as is the
number of actual executions. Support for the death penalty has decreased as
Americans grow increasingly aware that the criminal justice system makes
mistakes and that not only have innocent people been convicted of crimes, but
in a continuing tragedy the true perpetrators have remained free to commit
more crimes.
Our panelists today represent a fascinating array of views on this topic.
They will each make opening statements for seven to eight minutes, and then
we will invite questions from the audience. So I will briefly introduce all
of them now and then they will speak in the order that was agreed to
previously. First to speak will be Sam Millsap, the former Bexar County district attorney in Texas who prosecuted Ruben Cantu. Mr. Cantu was executed
in 1992; recent events indicate that he was very likely innocent.
Our second speaker is Kenneth Starr, dean of the Pepperdine Law School and a former judge and solicitor general of the United States. Dean Starr has represented two clients of death
row.
Third will be Bryan Stevenson, executive director of the Equal Justice
Initiative in Alabama and a law professor at NYU and one of the country's
leading capital defense lawyers.
And fourth will be William Otis, a longtime public servant who has served in
the White House and as an assistant U.S. attorney. Mr. Otis is speaking today in his
individual capacity. So after their brief opening statements we will invite
questions from the moderator and the audience.
Samuel
Millsap
SAMUEL MILLSAP: Let me begin by saying that I'm Samuel Millsap and
I am a recovering supporter of capital punishment. I would like to be able to
say to you, as I often do when I speak, that it's an honor to be with you. As
I talk about this issue in the specific context of the Cantu case, I think
you'll understand that I'm not honored by being here and that it's
understandable that I would prefer to be back in San Antonio having a root canal. But I do consider it a
privilege and in fact a responsibility for me to address this issue and do
so, I hope, in a responsible way.
I came to Washington with an approach to this topic that was going to be
somewhat clinical, and that changed last night. I was lucky enough to see a
wonderful exchange that was hosted by the Constitution Project on
consensus-building and then to go from there to the Holocaust Remembrance
Project dinner. The combination of those two events back to back was for me
absolutely profound. I was reminded that we need to talk to each other and
not hurl allegations, that we need to listen to each other and that we need to
try to solve problems together.
I was further reminded that lawyers have obligations that other folks simply
don't have. I believe that prosecutors have obligations that other lawyers
don't have. I believe that prosecutors who do good things and who produce
good results deserve credit for that, but I likewise believe that when bad
things happen in connection with the prosecution of criminal cases any
criminal case, but particularly a capital murder case it's incumbent upon the
prosecutor to assume responsibility for the results. It's incumbent on the
prosecutor to be positive and look forward and ask the question, how do we
make sure that this never happens again?
And that's what I want to talk about today briefly. There are four basic
principles that underpin everything that I have to say. The first and the
most basic is this notion that we have in the criminal justice system that
criminal defendants are presumed innocent until they're proven guilty.
The second principle that I think is crucial and that underpins everything
that we do in criminal justice is the notion that the system is designed and
has functioned for more than 200 years with one overriding goal, and that is
to make sure that the innocent are protected. And in fact what our system should
do, and I think fails to do today, is to actually guarantee the protection of
the innocent.
Principle number three is an idea that I heard over and over again in law
school and I have to confess that I haven't heard it very much recently that
it's better that 100 guilty men go free than that one innocent man be
convicted. And I think it's important that we remember that.
My final point is to remind everybody, particularly prosecutors, what the
statutory duty of a prosecutor in Texas and I think in most jurisdictions is: it's the duty
of the prosecutor not simply to convict, but to do everything in his or her
power to see to it that justice is done. And that means not just during the
investigation and the trial; it also means after the trial is over, whether
or not there's been a conviction.
Do we have press people from Texas? I'm going to have some things to say at the end of
my remarks that are directed to the state of Texas and I hope you'll listen very carefully. I've been
a lifelong supporter of the death penalty. I've been a full-throated
supporter of the death penalty and was until the year 2000 when I began to
have reservations as a result of three or four things that happened in a very
short period of time.
Samuel
Millsap
I
left office in 1987 and went back to a comfortable private practice and
closed the door on that part of my life, but I've come to the conclusion —
and it's based not on the Cantu case specifically but rather on other things
that I've seen happen in the criminal justice system — that the system as it
relates to capital murder is simply broken. It's my view in fact that because
it's driven by human beings and decisions that are made by human beings, it
can't be fixed, and that as a result what has to happen is that the option to
put people to death has to end.
I would say to Justice Scalia, who said in his
concurring opinion in Kansas v. Marsh that he knew of no innocent man
who had been executed, that he needs to look only to the state of Texas, to my state. Cameron Willingham was certainly
innocent. In fact, in the Cameron Willingham case, there wasn't even a crime.
Carlos De Luna, the most recent, was probably innocent. And the person I
prosecuted in 1985, Ruben Cantu, was probably innocent. And it didn't matter
as far as I'm concerned in my position today whether Ruben Cantu was in fact
innocent or not: the system simply doesn't work. What we see over and over
again are situations where witnesses who have no reason to lie recant
testimony and for good reasons.
I'm running out of time and I'll have an opportunity to develop this more
fully in response to your questions, but one of the things that I want to say
today to the people of Texas is that it's time for this hand-wringing about
the Cantu case to end. It's time for the people of Texas to be positive about how we move forward. It's time
for us to think about how we make sure that there will never be another
Cameron Willingham.
And I think — and this was really hammered home last night at the Holocaust
Remembrance Project dinner — it's important and incumbent upon the
prosecutors who drive this system to assume responsibility. And so today I
want to assume personal responsibility for the execution of Ruben Cantu.
I want to say a word as well to the members of the jury in the Cantu case, at
least those who have made statements. There's enormous confusion, as you can
well imagine. There are people who believe that they're responsible for the
fact that he was sentenced to die. They wonder whether in fact he was
innocent, and the thing that I would say to the members of the jury in the
Cantu case is the following: you did your job very well; you did only what we
as prosecutors asked you to do. You made the only decision that you could've
made based on the evidence that was available to you. You are not responsible
for the execution of Ruben Cantu. I am responsible for the execution of Ruben
Cantu as the prosecutor who made all of the decisions that resulted in the
presentation of that case to the grand jury, all of the decisions as to how
that case would be prosecuted, and all of the decisions as to how that case
would be argued and what we would ask the jury to do.
Thank you. (Applause.)
Kenneth
Starr
KENNETH STARR: It is indeed a privilege to be here, and that was
quite a dramatic beginning to these reflections. Let me begin with thanks to
the Constitution Project, to the Federalist Society and to the Pew Forum for
organizing this. And then let me say — somewhat ironically in light of Sam's
very dramatic, beautifully put statement — that I'm not an abolitionist and I
have never been. Two very quick examples illustrate the reason and then I
hope to broaden the lens somewhat.
I love history and I especially love the history of the last two centuries.
And I love the example of Robert Jackson heeding the call while serving at
the court and going to Nuremberg.
And at that trial there were 22 defendants in the dock. We sometimes forget,
if we ever knew, that of those 22 members of the leadership of the National
Socialist Party of the Third Reich, several were acquitted, several received
sentences for a term of years, three received life sentences, and one half
were sentenced to die and the sentence was promptly carried out. That was a
profoundly just outcome, a careful calibration of moral judgment.
But much more recently, indeed now underway in federal court in California — and I would ask you to draw a distinction, if you
would, between the federal system and pathologies that infect various and
sundry state systems — there's a man on trial named Barry Mills. He's known
as the Baron. He is one of two heads of the Aryan Brotherhood. He is on trial
in federal court for waging deadly race wars in prison. He will be in prison
for the rest of his life regardless of what happens, but the accusation is
that he has directly ordered the murder of 17 persons on the grounds of race
and these orders were issued from the most secure prison in the United States and perhaps in the world.
There are more such trials to come for the leadership of the Aryan
Brotherhood. And thus the moral principle that I derive is the right of
self-defense. We're familiar with the concept of just war to protect
ourselves against naked aggression, whether by a nation or by a terrorist
organization or by an individual within the state who chooses by his own
action to take himself out of the norms of civil society.
With that said, I have the most profound respect not only for Samuel and the
statement that Samuel has offered here today, but for all who march under the
abolitionist banner, regardless of the grounds, whether moral or religious,
and especially so many in my company who object to the death penalty under
any and all circumstances on religious grounds based upon very elevated
notions of the sanctity of human life. But even as to pure policy — call them
instrumentalist grounds — I again just have the greatest respect for those
who have come to the abolitionist view.
So with that I want to offer two points in this opening round of reflections.
The first is a point about the Supreme Court of the United States. Very briefly, as far as we can discern from the
justices' handiwork, there are no longer any abolitionists serving on the
Supreme Court, so even though time marches on and one may think attitudes
toward the death penalty are changing, it seems to me quite the contrary:
that this court has been continuingly reaffirming, if only indirectly, the
very existence of the death penalty in the United States. By narrowing its
reach, it reaffirms the fundamental proposition that the death penalty is
justified.
Mentally retarded persons are now categorically exempt, as are persons who
had not reached the age of 18 at the time of the crime. In fact, just this
term under the new chief justice the court has shown — and it was eight to
nothing because Justice Alito was not on the court
at the time of the decision itself — that it even can be unanimous in favor
of a death penalty result. Consider the case of Oregon v. Guzek, having to do with alibi evidence.
My second point is that we naturally tend to focus our attention on the
judicial process: prosecutors, juries, DNA evidence, the judiciary generally,
the role in our federal system of habeas corpus, the need, and it is
profound, for a truly capable counsel, and a trial with adequate resources to
mount an effective defense, which is a huge problem in the system. There are
other needs, too, some of which I believe are compelling in the
administration of justice.
But there is in fact a very important actor on stage — the executive branch —
that has the ancient power to do justice through pardon or clemency. That
role is found not only in the federal constitutional text, but in literally
each of the state constitutions where the death penalty obtains. And it has
been duly noted by the Supreme Court of the United States as a very important part of our capital punishment
system. In a Texas case, Herrera v. Collins, Chief Justice
Rehnquist, in speaking for the court, rejected the proposition that does seem
counterintuitive that a claim of actual innocence is not cognizable in
federal court unless it is accompanied by the allegation or assertion of a
constitutional violation.
But federal court, Chief Justice Rehnquist said, is not the only possible
forum for such extreme circumstances such as a Ruben Cantu. And here are the
late Chief Justice's words: "Clemency is the historic remedy for
preventing miscarriages of justice in our system where the judicial process
has been exhausted." This, the court said, is, in its words, "the
failsafe of our criminal justice system."
Kenneth
Starr
In
his inimitable way, Oliver Wendell Holmes Jr., in speaking about clemency,
described it as "anything other than" — Holmes' words — "a
private act of grace from an individual happening to possess power. It is
rather part of our constitutional scheme." To be sure, the role of
clemency was terribly important in a system not long past in which death
sentences were mandatory, but it is important still today, especially in an
era when the trend line is in favor of achieving values of finality in the
system and in particular to that extent limiting the role of federal courts.
Very briefly, my own experience in recent years — in the Robin Lovitt case in Virginia, working with Rob Lee of the Virginia
Capital Punishment Project, and in the still-unfolding Michael Morales case
in California — suggest to me that governors and their advisors are tending
to neglect this historic role of clemency and pardon in the system.
I am very grateful that former Governor Mark Warner of Virginia granted clemency to Robin. I am very delighted that
he did it in light of what we felt was a grievous misconduct in the
destruction of DNA evidence, which we also believe was used questionably at
the trial. That's a pathology in the system. We
have, however, not been encouraged thus far by the process in California, where Michael Morales should not be on death row.
He did commit a terrible offense; he deserves severe punishment and he
acknowledges the justice of his punishment, but not on death row.
His partition for clemency has been supported by the sentencing judge,
Charles McGrath, and you have a copy of that letter available to you. It is
an extraordinary letter to the governor urging clemency because the only
reason that Michael is on death row is because of what we now know to be a
perjured testimony at the sentencing phase by a jailhouse informant.
The last governor of California to grant clemency was Ronald Wilson Reagan. There have been no
clemency grants since Governor Reagan left office. My friends, that was a
long time ago.
Michael Morales' case is illustrative of what I think is a terrible trend,
abject deference to the judicial system with its inevitable flaws and a frank
unwillingness on the part of virtually every governor in the country, and
those who advise them, to fulfill their assigned role in our constitutional
structure. This isn't just a Supreme Court admonition; it is taking note of a
constitutional structural point.
It's appropriate at a Federalist Society gathering to take note of Madison and Hamilton's lifting up — Hamilton more so than Madison, but both did — the need for energy in the
executive. And even Mr. Jefferson, the staunch adherent of the
anti-federalist republican tradition, agreed by his actions in office that
the executive should move with energy. And even in our bloodiest war, which
pit brother against brother, Mr. Lincoln took time to review personally the
files of those seeking clemency. It was part of his greatness. Perhaps we
would do well to ask our governors to reread the last paragraph of Lincoln's Second Inaugural.
In closing, one of my favorite Lincoln stories is when one of the future reconstruction
senators said, "When we put our hands on Jefferson Davis, we should hang
him from the nearest tree." And that senator wrote in his memoirs that
he made the point more than once in Mr. Lincoln's presence and Mr. Lincoln
simply replied, quoting from Scripture, "Judge not that you be not
judged." Let us give greater attention to structural devices to protect
against the pathologies that Sam has so poignantly lifted up.
Thank you. (Applause.)
Bryan
Stevenson
BRYAN STEVENSON: Thank you. It's also a great honor for me to be
here as a defense attorney. When I realized that my three other fellow
panelists were either prosecutors or former prosecutors, I thought that this
may not be the forum for me to come and talk. But these are truly exceptional
and extraordinary people, and the nature of this discussion would be very
different if the Samuel Millsaps of this world were
the people prosecuting death penalty cases all over this country.
And, Mr. Millsap, let me just say to you how deeply grateful I am for the
words you've spoken here today. I hope they have resonance not just in this
room and not just in Texas,
but all around this country where many of us have simply been asking for a
long time for people who have power over life and death to act responsibly.
The great frustration is that there has been so little responsible conduct on
this issue, and that's why I'm opposed to the death penalty. I think it has
to be abolished. I think we've got to get it out of our heads and we've got
to get it out of our hearts.
When you start working on this issue, one of the fascinating things is all of
the paradox, all of the irony. In this country, we would never rape someone
who has been convicted of rape. We think the act of actually making someone
go into a cell and rape another human being to punish him for that crime is
completely abhorrent. We would never say if someone has been convicted of
child abuse or sexual abuse, go in there and abuse this offender, sexually
abuse him, physically abuse him. It's abhorrent. Most of us disavow torture.
We wouldn't say if this person has been convicted of torture, "Let's go
in there and torture him," because we recognize it does something to who
we are. It's not just the offender; it's who we are. Yet somehow we hold to
this idea that we can kill the people who have killed. And I think we hold to
that idea because there is this big disconnect. The act of killing can be
sanitized, it can be cleansed, it can be made into a procedure, and it can be
ritualized, so that somehow we're not really thinking that we're killing
someone.
For the last 20 years I've actually been representing people on death row,
and I've spent too many hours next to people who are about to be
electrocuted, watching the hair shaved off their body before they're put in
the electric chair or squirming on lethal injection tables and seeing the
tears and the anguish. And I believe that the death penalty ought to be
abolished because it is corruptive. It corrupts all of us. It is corrupting
our courts. It is corrupting prosecutors. It is corrupting police. It is
corrupting defense attorneys. It is corrupting jurors. It is corrupting our
society. I think that because I see so much evidence of it, so much pain and
trauma. And it's not just that we're unwilling to talk about it. We don't
have the will in this country to recognize what we have to do for people who
are disfavored.
The death penalty is supported in America because we have a lot of people
who preach fear and anger, and they want us fearful and angry about crime,
and they want us fearful and angry about so many things. And on that high we
can tolerate a lot of error. Well, I think we have to stop there. We
ultimately have to be a society that recognizes that we will be judged not by
how we treat privileged people, not by how we treat powerful people, but by
how we treat condemned people, how we treat the poor, how we treat the
disadvantaged. That's how we measure our civility. And when you look at
what's going on in the death penalty arena, we are doing horribly.
I'm grateful for the efforts of so many people who are struggling hard to
institute reforms, and Judge Starr and so many other folks have played a role
in that. But I don't think we're ever going to get there because there are
these political dynamics that are corrupted.
We have a society that we all recognize is driven by wealth. Lawyers in this
room know that the legal system is incredibly wealth-sensitive. Our system
treats you much better if you're rich and guilty than if you're poor and
innocent. Innocence is not the most useful thing you can take into court;
it's wealth. If you've got wealth, you get a different outcome.
It's amazing to me: we've had over 1,000 executions in this country. If most
of those folks had been represented by anyone on this panel, likely they
would not have been executed, and that ought to say something to us not about
the offenses involved in those crimes, but about the nature of our criminal
justice system. I'm defending people on death row in my state of Alabama, 66 percent of whom were represented by lawyers who
by law could not be paid more than $1,000 for the out-of-court time they
spend preparing their case. And rather than confront that as inherently
unjust, corrupt and unacceptable, our courts bend over backwards to find ways
to rationalize these death sentences. We've run these cases through the
rubric of ineffective assistance of counsel, and we have to see that there's
prejudice before we do anything about it.
This corruption plagues and undermines what goes on in our courts. And I see
that going on in the habeas context where the federal courts are being
corrupted by the commitment to get people executed in these results-driven
cases that create unthinkable results. And the Herrera case is just one
example that Judge Starr talked about.
I'm also mindful of history. I think that history does have something to
teach us. And the corruption isn't just seen in the way we deal with the
poor; it's also seen in the way we deal with race in this society. I grew up
in a community where the people I lived with were marginalized. It was a
segregated area and we couldn't go to the public schools, and I saw how being
disfavored changed your status in America. And I want very much for this country to get past
that legacy, but instead what we do in the death penalty arena is we feed
this history of racial apartheid.
In my region, the deep South, there are thousands of people — black men,
black boys, black women — who have been lynched. And we followed that era of
lynching in the early 1900s with racial apartheid laws that still exist on
the books today. We can't get it out of the state constitution that you can't
segregate people based on race; it's still in our law.
And that was followed by litigation in the death penalty context aimed at
proving race bias in the death penalty in Georgia. And in the 1987 McCleskey
case, the United States Supreme Court with that history in mind, with very
dramatic evidence of bias, said it's inevitable; it's corruptive. And now we
talk about this legacy and we create these challenges that go unmet. I've
worked on two dozen cases where prosecutors have been found to illegally
exclude people on the basis of race.
Bryan
Stevenson
And
our commitment to racial equality ought to make us vow not to have a death
penalty like we have in Alabama
where 80 percent of the people on death row are there for crimes for victims
who are white, while 65 percent of all murder victims are black. And yet we
fail to deal with that. I see it going on with the mentally ill. And so many
of the people who end up on death row are not people who commit terrorist
acts. They're not the Timothy McVeighs.
The death penalty is largely employed in this country against the poor, the
mentally ill, the vulnerable, and so I say we do have to end it. And to me
the question isn't whether people deserve to die for the crimes they commit.
The death penalty debate has been terribly misaligned. It's not a choice
between the death sentence and no punishment; it's a choice really between
two kinds of death sentences. Most jurisdictions have life in prison without
parole. It's just another kind of death sentence. Are we going to let this
person die in prison on a certain day at a scheduled execution, or will they
die in prison after decades of imprisonment? And we're saying we have to make
them die at this particular time, and the question becomes how and why? How
did we get there, and how much of this corruption do we tolerate?
And so in my mind this issue should not be just a question of whether people
deserve to die, but whether we deserve to kill. We have tolerated so much
error, so much injustice, so much unfairness; we have a system that is driven
by poverty, that is undermined by race. And Mr.
Millsap talked about the presumption of innocence, and for poor people and
people of color and marginalized people, when you get charged with a capital
crime you have got to recognize that you are presumed guilty. And if your
lawyer is not prepared to overcome that presumption of guilt, you will be
convicted and you will be sentenced to die.
I'll end with this. Two days ago I was on Alabama's death row and was spending three hours with a man
named Anthony Ray Hinton. And Mr. Hinton has been on death row for 20 years
and he is innocent. And when people talk about innocence in these cases you
have to know who they are and what their relationship is with the case. You
can't make judgments about innocence in Washington, D.C., without records and hours of investigation. We
spent hundreds of hours working on this case, and I know the man is innocent.
And when I left I was talking to somebody about it and they said, "Well,
that's good for you because another innocence case will help the issue."
And it broke my heart when they said that, because this man is suffering. And
the corrupt thing is that our capacity to tolerate that seems to expand.
This discussion is sponsored in part by the Pew Forum on Religion &
Public Life, and it does cause me to challenge people to integrate what we
understand about justice, what we understand about fairness, what we
understand about faith when it comes to this issue. Jesus was asked his
position on the death penalty, and he said, "Let him who is without sin
cast the first stone." That wasn't an argument about the morality of the
death penalty in the abstract; it was a challenge that no one should pick up
the stone. No one should execute until they've committed themselves and
purified themselves in a way that our criminal justice system can never lay
claim to, that no state government can lay claim to.
And with that history and with that awareness and with that consciousness, I
think it's time for the death penalty to end. It's time that we put this
behind us so we can begin to deal with these vexing problems of poverty and
race and dysfunction and injustice.
Thanks very much. (Applause.)
William
Otis
WILLIAM OTIS: I want to start off by telling you a story about something that
happened in a nearby suburb, Silver Spring, Maryland. A family lived there by the name of Horn. They had
a little boy by the name of Trevor. Trevor had a difficult birth. There was a
botched delivery. The umbilical cord became wrapped around his neck and he
was deprived of oxygen for a significant period of time during the delivery.
He was born a quadriplegic with significant mental retardation. As a result
of this, he got a $1.7 million settlement from the hospital.
Raising a quadriplegic son is difficult enterprise, and it's expensive even
when you have a big settlement. When Trevor was eight years old, his father
Lawrence Horn had had enough of these difficulties and decided that this big
pile of money that had been put aside for his son could be put to a better
use; namely, his use. So he arranged to have Trevor killed. This is not
something he did by himself; he hired a hit man.
You might think I'm making up that someone would hire a hit man to kill an
eight-year-old, but it's true. The hit man's name was James Perry. There was
a considerable amount of price haggling about how much Lawrence Horn would
pay to have his kid killed. Some of that price haggling was done over the
phone; some of it was done with an intermediary who testified at the trial.
The parts that were done over the phone amazingly enough were left on phone
answering machine messages. And those were introduced along with other telephone
records at the trial.
Eventually, a price was agreed upon – $5,000 – but included in this, Lawrence
Horn wanted not merely his son to be killed; he also wanted his wife to be
killed because, you see, his wife would've shared in the $1.7 million, and he
wanted it all for himself. So the deal was $5,000 to kill the eight-year-old
and kill the eight-year-old's mother.
James Perry went out to the house and he made good on the contract. Killing
an eight-year-old, particularly a paralyzed one, is not very difficult for an
adult male who just put his hand over the tube that fed oxygen into Trevor's
trachea. But killing the mother involved a little more than that and indeed
there was a complication. The complication was that Trevor's nurse was also
there. Her name was Janice Saunders. So James Perry was confronted with an
unexpected and unwanted witness to this. He shot the mother and he also shot
Janice Saunders, the nurse. He shot them through the eyes. Now you might
think that this just shows what a gruesome, horrible, sadistic person this
guy was, but that's not so. The reason a hit man shoots his victims through
the eyes is so that in the unlikely event the victim survives, he or she will
not be able to do an in-court identification. It
wasn't sadism, it wasn't a mental defect, it was just business.
The burden of proof in this debate about the death penalty is on the
abolitionist side, and it is not merely to show that there are questionable
or sympathetic or problematic cases, as there are in every aspect of
litigation. What they must show is that every execution is wrong. Abolition
means abolition, the end of it — period.
There are two central problems, I think, with a strict abolitionist argument.
One is that it is a one-size-fits-all, don't-pester-me-with-the-facts sort of
position. It simply does not matter, under that position, what the killer
did, how utterly incontestable the evidence is of his guilt, how gruesome or
cold blooded or calculated it was, how many people he killed, or how many people
he killed in the past. None of that matters. A position like that
significantly oversteps the justifications typically offered on behalf of the
abolitionist position: bad lawyering, possible
racism in any given case, that the police are hiding or manufacturing
evidence. All of those things can be gone over and are gone over in great
detail and over a long period of review in case-by-case analysis under the
most exacting standards that the law knows. But that is a far cry from
justifying complete abolition in every case no matter what.
Indeed, an argument that the death penalty should be abolished, period, no
matter what the circumstances, deliberately ignoring the circumstances, is an
argument that in most neutral settings — including, for example, court and
sensible law school debates — would not be taken seriously. The public does
not take it seriously. Support for the death penalty in this country is at 65
percent; it has been at about that same level for a number of years now. A Gallup poll six weeks ago pointed out that a majority of
the country believes that the death penalty is not imposed frequently enough.
There is probably not one single abolitionist on the current court. In the
history of the court, there have been 112 justices; three of them — Brennan,
Marshall, and Blackmun — have been against the
death penalty per se. The other 109 have not.
William
Otis
The
second basic, overriding problem with outright abolitionism is that it simply
shoves off to one side what in any other context is the accepted and indeed
the uncontroversial maxim that governs criminal punishment,
and that is that the punishment should fit the crime. What punishment do you
think fits the crime that James Perry and Lawrence Horn committed? A sentence
of imprisonment no matter what the length? It's fine to give a long sentence
to a carjacker, to a child molester, to someone who poisons kids — teenagers
by selling them dangerous drugs, for instance — but that is a different kind
of thing. It's frequently said in these debates that death is different. It
is different and so are the crimes like Lawrence Horn's and James Perry's and
Timothy McVeigh's that bring about the death penalty. Let the punishment fit
the crime.
I would be hard pressed to tell you that there is anything in the law that
could not benefit from reformation, but I think what we need to watch out for
is abolition being impersonated by a call for reformation. And in particular
I want to mention the call for a death penalty moratorium, which in my
opinion is abolition in disguise. Death penalty opponents know that they
cannot sell outright abolition because the public is against it. The public
has seen enough of Timothy McVeigh and John Wayne Gacy
and some of these other gruesome killers and is simply unwilling to put aside
for all time and in any circumstances its right to allow the jury to decide
on a death penalty. So we hear the call for a moratorium.
And the last thought I want to leave you with in my opening statement is
this: we have had a moratorium before in this country. It lasted for ten
years, from 1967 to 1977. In the preceding ten years when we had executions —
289 of them — there were 95,000 murders in this country. Immediately after
that, during the 10-year moratorium from 1967 to 1977, we of course had zero
executions and 180,000 murders — almost double the number. The truth of the
matter is that the death penalty has a significant deterrent effect as these
numbers prove beyond serious argument. Therefore it is the death penalty and
not abolition of the death penalty that in the end will save innocent life.
(Applause.)
MS. SLOAN: Thank you very much to all of our panelists. Let
me lead off with one question and then I will turn it over to the audience
for questions. This question is directed primarily at Mr. Otis and Dean
Starr, but I hope all of the panelists will answer.
Mr. Otis, you talk about the advocacy for reforms to the death penalty system
as being perhaps a cover for people who are truly seeking abolition. I just
want to point out that our Death Penalty Committee that advocates for a
significant number of reforms includes supporters of the death penalty such
as Beth Wilkinson, who prosecuted the Oklahoma City bombing case, and Sam
Millsap when he used to support the death penalty, and many others who do
support the death penalty but believe that the system is badly broken.
And so my question is, do you believe that the system is in fact fallible, that
there are systemic problems that need to be addressed through reforms? Do you
believe there are reforms that would help to make both the trial process and
the appellate review process more reliable so that the system is able to
identify the truly innocent and the people who are truly worthy of capital
punishment, and so the system can remedy errors in a timely fashion?
MR. OTIS: Anyone who would sit up here and tell you that the
judicial system is infallible is lying. It's not infallible. What also needs
to be recognized, but seldom is recognized, is that the penal system is also
fallible. Frequently we hear that if we end the death penalty and simply live
with life in prison without parole, then you'll see that this will take care
of the problem. This overlooks the fact that prison security is at least as
fallible as the judicial process and dozens and dozens — indeed, more than a
hundred people — have been killed in prison and 37 people have been killed
after prisoners escaped.
You might say that what should be done is to make prisons more secure. And
just as we all want to make adjudication more accurate, we all want to make
prisons secure. But we all have to recognize that fallibility runs throughout
the system — not just in court, but also in prison — and therefore we must
understand that there are going to be innocent people killed regardless of
which reforms we undertake.
MS. SLOAN: Are there reforms to the system that you would
support to try to cure some of those problems?
MR. OTIS: There are some reforms that I support. It will not
surprise you to hear that I support giving more money to lawyers, and if they
want to start yesterday that's okay. Some of the rates that death penalty
defense counsel are paid are extremely low and it seems to me they ought to
be raised if for no other reason, from a prosecutor's point of view, than
that if you have an underpaid, overworked and overtaxed defense lawyer what
you have is a walking potential 2255 or a habeas corpus going on, so simply
from that point of view you would want more money to be funneled for defense
lawyers so that they will be better enabled to present a full defense that
would stand up on appeal.
MR. STARR: Bill's answer certainly foreshadowed and well
expressed my principal proposed reform. I want to come back to the structural
point with respect to the federal system and the state system. I believe that
the vast majority of the complaints and the very serious charges that the
wrong individuals have been convicted are in state systems.
It is my further sense that the federal system has been very judicious in the
exercise for prosecutorial discretion, including review by the attorney
general of the United States himself or herself, before a criminal or a capital
sentence is sought. Those kinds of protective mechanisms are not in place
with respect to our state systems, but far be it from me to suggest to Texas or any other state how it should restructure its
system. But it certainly seems odd that there is such gross decentralization,
that there is no, shall I say, quality control of the kinds of prosecutions
that are brought. So I think one should be rather attentive to state-by-state
concerns with respect to the exercise of prosecutorial discretion in how to
control that in light of this decentralization.
But the single largest reform truly is trial counsel adequacy. Many of the
concerns are due to the inexperienced or the otherwise inadequate levels of
performance, and Bryan noted the severe restrictions on the ability to
investigate. I have seen that not simply in Alabama; I have seen that in California. So my point would be that if we are in fact going
to seek to impose society's ultimate sanction, we should be willing to follow
the Bill Otis example and provide the appropriate resources at the trial
level.
Samuel
Millsap
MR. MILLSAP: One quick point that I would make in response to this question. My
simple answer to the question is that I don't think the system can be
reformed. But both Judge Starr and William Otis have focused on the issue of
the adequacy of legal counsel, and part of the reason why the Ruben Cantu
case is the perfect case to use as a centerpiece in this debate is that it
was not all of the other cases that you've heard about in which the lawyer
went to sleep or the lawyer had been disciplined so many times or the lawyer
was not competent. Ruben Cantu had a fine defense lawyer, someone who, by the
way, Ken, was raised in our old neighborhood with us. He had a great lawyer.
He had a fair judge. The prosecutor who prosecuted Ruben Cantu and who worked
for me was one of the most honorable and ethical people that I've ever worked
with.
Now, what does that mean? He received the only thing that the system in fact
can possibly guarantee, and that is a fair trial. It can be argued that Ruben
Cantu received the perfect trial, and yet at the same time today, 21 years
later, the thing that is abundantly clear is that he may well have been innocent.
We'll never know with certainty whether he was innocent or not, but he may
well have been innocent. When the system works the way it's supposed to and
it still produces unfortunate results, abolition is the only appropriate
response from civilized people.
MR. STEVENSON: I'd just like to echo that. I think part of
what pushes reform is the notion that we don't actually have to have a death
penalty. And I think if you accept that that is, that the quality of life in
America is not going to change tomorrow if all of a sudden there is no death
penalty; we've got 11 states in this country that don't have death penalties,
and, actually, some of their murder rates have dropped more dramatically than
neighboring states that have executed lots of people then you have to think
much more critically about why we do something that is going to create the
kinds of results that we're talking about here today, particularly if the
system is perfect. And that's the point of reform that I want to emphasize.
There is obviously a tremendous need for counsel. Counsel is the core of it.
It's not just trial counsel, however. We've got 3,500 people on death row in
this country, most of whom did not get adequate representation, and we cannot
create justice in those cases without making sure that those people also have
adequate counsel. In many states across this country, people are literally
dying for lawyers while on death row. There is no right to counsel if you're
under a sentence of death in most states. In my state, we have dozens of
people who can't find lawyers. And so a reform has to embrace that, but it
also has to embrace the depoliticization of the
death penalty.
The reason we're afraid to just cease having capital trials until we deal
with these problems is because the politics of the death penalty make that
unacceptable. And when you have a political system that does not tolerate
confessing error, acknowledging mistakes, you will not get to reform. And
that dynamic is, again, undermining and corrupting at both the state level
and the federal level. We just had a justice on the Alabama Supreme Court who
announced he would not comply with the U.S. Supreme Court's decision in Roper
v. Simmons banning the execution of juveniles. He took to task the rest
of the court for going along with that case, and he conducted a political
campaign for chief justice on that theme. And you will see that happen,
because in an era when fear and anger play politically, the death penalty
will become a central tool. And that, in my judgment, doesn't leave room for
the kind of honest reflection about reform that I think a lot of us would
like to see.
QUESTIONER: I have a question for Judge Starr. You suggested
one mechanism for remedying injustice in state capital trials. I wanted to
ask you about another mechanism, which is federal review of state convictions
through habeas corpus. After your experience with the death penalty as a
lawyer in recent years, what do you think of the 1996 federal law that
severely limited federal review both in terms of scope and with strict time
limits? And I'm also curious whether you have a view of the current proposal
in Congress to limit habeas corpus even further.
Kenneth
Starr and Bryan Stevenson
MR. STARR: My own view is that simplicity is a very desirable goal to try to
achieve in the criminal justice system, and the 1996 statute did embody what
I think are understandable concerns about some courts in the federal system
being seen as riding roughshod over state systems. And finality is a very
important value. But my own view as a lawyer, quite apart from policy
considerations, is that that statute has overly complicated the question of
federal habeas review.
I'm in favor of getting to the merits, of less threshold kinds of litigation
over the standard of review, which has itself given rise to a real cottage
industry of litigation. And I think it's not only very vexing to the lawyers,
but frankly it's confusing to judges because they know what the right answer
is, but then they have to go through this very strange exercise of whether
this could've been a reasonable interpretation under the circumstances, and
the ADEPA standard, I think, is overly convoluted.
MR. STEVENSON: I echo that concern. And what bothers me even
more is that you don't have policymakers who actually have a good
understanding of what it's like to do this sort of litigation. I think if we
actually did, we would simplify it for all lawyers and for judges, and it
would actually get closer to having a sense of what really happened in this
case. Increasingly at the 11th Circuit, where I practice, the last 22 out of
24 cases coming out of Alabama
were adjudicated purely on procedural issues, so the court never got to the
constitutional questions about the quality of the lawyering
or whether the Sixth Amendment was honored. And I think that does a real
disservice to a review system that promises to assure the people of America that these sentences are valid and reliable. We're
not really doing that in habeas anymore.
MR. STARR: May I add a very friendly footnote to that? That
certainly does contribute to this sense on the part of those who advise
governors — I'll say this from my two experiences — that the courts,
including the deferral courts, have exhaustively analyzed these issues. And
then when you try to engage a counsel to the governor, but it looks like it's
a standard of review that the federal court was faithfully following, we now
see that the actual merits were not being addressed and suddenly eyes are
glazing over. These are able lawyers, and I don't mean to suggest that
they're not taking a very close look at it, but it is odd. If you're going to
have a close look at the issue of whether the Constitution was violated, I
think simplicity is the better way to go. So I'm not a fan of these kinds of
suggestions to really complicate the standard of review, because I see it
also adding to the sense that while there has been an exhaustion of judicial remedies,
there is no role for the governor.
I'm involved in litigation on same-sex marriage and on a side that's probably
unpopular here in this very enlightened office, and recently the General
Assembly of California actually voted to change the definition through the
representative process, which frankly is part of my argument in a case: let's
allow the representative process to work. Well, the representative process
isn't working, and the governor in exercising his veto said, "The
definition of marriage is an issue entrusted to the judiciary." That's
the kind of mindset that I think is just most unhealthy, and governors need
to be much more attentive to their role in this process.
EUGENE MYER, FEDERALIST SOCIETY: I'm Eugene Myer of the
Federalist Society. I wanted to ask two speakers to respond to something. I
was interested if Mr. Stevenson would respond to Mr. Otis' point about a
number of people killed by those who are supposed to be in prison without
parole, whether killed in prison or killed in escape situations. And I
wondered if Mr. Otis or Mr. Starr could respond to Mr. Stevenson's point that
maybe somebody deserves to die, but what is the effect on those who are
killing — and if I might add to Mr. Stevenson's point — who are essentially
killing in cold blood rather than in the immediate type of self defense we
often think of?
Bryan
Stevenson
MR. STEVENSON: With regard of the first question, there isn't a
warden or a prison commissioner that I know of in America that will tell you that they cannot run a secure facility, that they have to have the death penalty because
they're just incapable of providing security. These murders that were
referenced where not committed by people on death row. These are very
frequently people who become dispirited and desperate, and since we don't
really rehabilitate or respond to people in prison in a healthy way, that
manifests itself, sadly, with more violence. But you're not going to prevent
that problem by having death sentences. A lot of these guys were convicted of
drug crimes before they escaped and committed another murder.
And the sad part is that if we're really committed to creating environments
within prisons that reduce homicide and all that other kind of stuff, we have
to think very differently about the role of the institution. We can't just
warehouse people and let them rape each other and abuse each other and form
gangs that create the kind of violence that then leads to this. So I see that
as a correction issue, but I don't think we should have a death penalty in
the country out of a position of weakness that says we're so weak and
incapable of providing security among people who have no power, no weapons, and
who are locked down 24 hours a day that we execute them.
The other part of that is the deterrence point that I think is worth
emphasizing; and I'll just speak from my perspective representing people. My
clients are people who at 13 and 14 years of age don't believe they're going
to live past the age of 18 or 20. They're in poor, marginalized communities
where they see no hope. They not only expect to die, they expect to die
violently from gangs, from police, from war, from all of the problems that
dominate the street. The idea that a death penalty on a statute is going to
change their behavior is just disconnected from these communities. We have
got communities in Washington, D.C., where there are kids who don't think they're going
to live past the age of 21. They think they're either going to be dead or be
in prison for the rest of their lives, and that kind of hopelessness does not
lend itself to the notion that we have to have a death penalty to deter
violent behavior. It's just not realistic.
MR. STARR: I want to comment very briefly in light of Bryan's wonderful presentation. One of my early
experiences when I was at the Justice Department serving as chief of staff to
the attorney general in the Reagan administration was making the tour, as I
did, either with the attorney general or separately, of a number of federal
institutions and even some state institutions. And I must say, one of the
chilling moments I had was when I was face to face — not without
companionship, I'm glad to say — with someone who had taken three lives. And
the psychiatric assessment said this guy is a pathological killer and he
would just as happily kill you right now. It had nothing to do with race or
with marginalization. This person was for whatever reason taking himself out of the bounds of civil society. Could such a
person be rehabilitated?
Again, as I said at the outset, I have the greatest respect for those who,
especially on religious grounds, say we cannot willfully take a life. And
therefore to come to your specific question directed to me, I think it's a
broad question that really goes to governors.
Take a governor such as Governor Kaine who does not
support the death penalty, I believe, on religious grounds, but certainly
there are moral as opposed to instrumentalist grounds that undergird his opposition to the death penalty as I
understand it. I'm sure if I'm in error, someone will quickly correct me, but
that's my understanding of his position. And yet I understand he is signing
death warrants. Now, why is that? I think the same rationale obtains with
respect to those who are otherwise involved in the process, including the
actual death chamber itself. And I've been to San Quentin, but I have not
seen the chamber itself, so Bryan and others will speak to that. But I think
these individuals, whether we agree with them or not, view themselves as the
instruments of the state in carrying out a judgment of the state not their
judgment, but a judgment of the state that has been duly affirmed and their
role is that of a soldier in a time of war carrying out their duty. It's my
theory of just war as applied to civil society.
But of course you would have to address that question to those who are
involved in it. I would want no part of the grisly business. And I will say
that a fair amount of very intriguing evidence is being uncovered during the
course of discovery in the lethal injection litigation that's underway in California. There will be a trial before Judge Vogel, a United States district court judge in San Jose who is a very thoughtful, enormously intelligent,
experienced and deeply respected judge. And so let's see what happens in this
trial in two months. I think some of the facts that are going to be uncovered
or will come up in open court will be very arresting to a lot of people of
good will who may be convinced that we really need to rethink this so-called
humane way of carrying out the sentence.
William
Otis
MR. OTIS: If I might respond just briefly to Bryan's point. I respectfully disagree with the notion
that people commit murder out of hopelessness and a sense that they haven't
been given a chance. This seems to me to be the blame-America-first theory as
applied to criminal justice. The basic reason that people commit murders that
wind up getting a death sentence is that they want to clean out the cash
register at the 7-11 at 3:00 a.m. with little resistance and leaving no witnesses. And there was an
article that you may want to look at in The Washington Post — it's not
a recent article, it was back in 2002 —about one of the gangs that operates
in D.C. and that this very week has caused the mayor and the police chief to
declare a crime emergency on account of 15 murders that have happened in this
city so far this month.
What happens in these murders is that gang members want to eliminate
witnesses, and as this Post article discloses, in one month — not this
month, but an earlier month — they killed seven witnesses. In a no-death-penalty
jurisdiction, that is the smart move to make. If the most you can get is life
without parole, why be convicted at all? You make the state's case impossible
because the state has no witnesses, and even if you get convicted for it
you're not facing anything more than you were facing to begin with.
ALAN BERLOW: I'm a freelance journalist. You cited the tens
of thousands of murders that happen in this country that do not get the
punishment that you suggest they deserve, and I'm wondering if you could
quantify on the one hand how many executions you would like to see per year —
1,000, 2,000, whatever — that would make this a more effective deterrent, and
on the other hand how many executions of innocent people would be tolerable?
MR. OTIS: I do not deal in gross numbers. I would like to
see cases adjudicated on their individual facts. If on an individual-fact
adjudication a properly instructed jury — which of course the defense and the
defense lawyer have a significant hand in selecting both through peremptory
strikes and strikes for cause — if that jury concludes that the death penalty
is not warranted, so be it. I do not believe that juries in this country
consist of monsters who for no reason or for no very
good reason are willing to impose the death penalty. I want cases adjudicated
case by case.
As to the execution of the innocent, as Justice Scalia
pointed out in his concurring opinion in Kansas v. Marsh, although we
hear a great deal about the supposed execution of the innocent, in fact there
has been no adjudication that a single innocent person has been executed for
at least 50 years, nor am I aware of any neutral body — which is to say, a
body that has not taken a preexisting position on the death penalty, either a
court or even a committee of the ABA, which isn't all that neutral — that is
willing to say that an innocent person has been convicted.
We heard about this, if you will remember, just six months ago. Six months
ago, the innocent person who had been executed was a fellow by the name of
Roger Keith Coleman. We've heard the same things that we frequently hear in
debates of this kind: that the police rushed to judgment, that they did not
adequately investigate other potential suspects, that the evidence pointed
persuasively to someone else as the, quote, "real murderer," as O.
J. Simpson would say; that there were political pressures to get the trial
done, to find someone to blame and execute, and Roger Keith Coleman was an
innocent man. This was said with great conviction and great indignation, and
it was completely false.
Governor Mark Warner authorized DNA testing of the kind that the
abolitionists had sought and proved not that there had been a rush to
judgment, but that the judgment by the prosecutor and by the jury was correct.
So the next time you hear that we've executed the innocent, think of the man
who has now disappeared down the memory hall, Roger Keith Coleman: the man
who wasn't innocent.
MR. MILLSAP: Let me just make one quick point in response to
Mr. Otis. Of course there haven't been any adjudications of innocence in
connection with cases in which executions have occurred. By definition that
simply doesn't happen in our society. What we do is we wring our hands, we
hurl allegations back and forth, we try to place blame somewhere else. And
that's the way we sort these things out after the fact.
What I would suggest to Justice Scalia is that if
he wants proof that we have in fact executed innocent people in this country,
he needs to look only at the Willingham case in the state of Texas. In the Cameron Willingham case, there was not even
a crime committed. It's now clear.
MS. SLOAN: Can you describe the facts of the Willingham
case?
MR. MILLSAP: It was an arson case. Cameron Willingham was
executed. He was convicted on arson and was executed because his three
children were killed in the fire that burned his house to the ground. The
determination was made that there was arson and that he was responsible for
the arson, and it's been established conclusively in
the last year that the conviction was based on what we refer to as junk
science and that in fact there was no arson, so in that case there was no
crime.
To someone who would make what I consider to be the ludicrous argument that
the death penalty somehow deters, I would respond that in effect what you're
saying is that the reason why we execute is to make a point. What I would
suggest to anybody who believes that the reason why we execute is to make a
point is that they should be just as concerned about making sure that we get
it right when we do it as they are about the point that is being made.
And if the system is flawed, if, as I suggest, just based on the Texas
experience, innocent people are being executed — and I don't make this
argument on moral grounds, but on what Ken refers to as instrumentalist
grounds — then don't we need a system that works before we go forward in
continuing to try to make the point that I believe Mr. Otis thinks we are
making?
PAUL KAMENAR, WASHINGTON LEGAL FOUNDATION: I'm Paul Kamenar with the
Washington Legal Foundation. Our foundation supports the death penalty, and I
don't think the panelists have really addressed Bill Otis' primary issue
here, which is that you're talking about anecdotal and isolated examples of
innocence, and when you look at the system that supposedly is totally flawed
you have basically a system that is 98 percent accurate in terms of getting
it right.
It would seem to me that those who oppose the death penalty should admit that
the system gets it right 98 percent of the time. And in the Herrera case,
Justice O'Connor said there was no credible evidence of innocence there. Not
even the dissent suggested there was. And, Ken, I'm surprised about the
Morales case because here you have a case that you mentioned you were
involved with where the guy strangled a 17-year-old girl with a belt so
strongly the belt broke, and when that didn't kill her, he took a hammer and
hit her over the head 23 times until her head was pulverized. That didn't do
it. Then he raped her and then he stabbed her in the heart four times. And he
admits that. He says he's sorry for it, yes, but he did it. There's no
innocence there, so I would think that you've got to acknowledge for the
other side that there are a good number of cases where society gets it right.
MS. SLOAN: Can I ask you, Mr. Kamenar,
where you get that figure of 98 percent?
MR. KAMENAR: Basically from your figures. You've got an
innocence project which says that there are over 100 that were exonerated,
and you've got 6,000 on death row. The New York Times said that of
this 100, maybe at best 30 or 40 may have been innocent. But, all right, 98
percent or 96.5 percent. There are those who actually admit, "Yes, I did
it," and some are even man enough to say, "Yes, I deserve the death
penalty; please impose it." But society is so great that there are
automatic appeals even in those cases. So that's a point that's got to be
recognized.
MR. STARR: Yes, on Michael Morales, Paul, I really do refer
you to Charles McGrath's letter. I think you have a quarrel with the law of California. But the law of California, even with that egregious circumstance, would not
sentence him to die. The reason he was sentenced to die was because the jury
found he was "lying in wait," and he was found "lying in
wait" overwhelmingly because of the perjured testimony of a jailhouse
informant. That was the reason he is on death row. He acknowledged, prior to
trial, that he had done this. He was extraordinarily remorseful.
I will also say that we should not overlook the fact — and this is what
Michael says on death row — that they're putting to death the old Michael and
not the new. I would not be too dismissive of that observation, because it is
absolutely undisputed that the old Michael was operating on both alcohol and
drugs and was plied by his cousin who planned the crime. You see, the victim
of the crime was the object of Rick Ortega. Rick Ortega, Paul, is not on
death row: he who planned the offense and accompanied and participated is
suffering a life in prison.
MR. KAMENAR: The triggerman is on death row, and the one who
didn't pull the trigger is not. I don't see your point.
MR. STARR: Well, if you don't accept my legal point, we will
agree to disagree.
MR. MILLSAP: Let me talk to you about math for a second.
Your suggestion that we get it right 98 percent of the time based on the data
that you have is incorrect. What in fact the numbers established, to the
extent that numbers matter in a debate like this, is that for every eight
executions that have occurred in the last 30 years, one person — at least one
of those eight — was innocent. That's based on hard —
MR. KAMENAR: Actually innocent?
MR. MILLSAP: Actually innocent. What I'm referring to is the
document that you've cited that supports your position. There are 123 people,
according to the Death Penalty Information Center, the DPIC, that were not simply exonerated of the
capital offense, but who were never subsequently convicted of anything. Now,
let me make one other point. You're obviously a person who agrees with
Justice Scalia and who would suggest that it's good
enough if we get it right most of the time. Well, if you actually believe
that we have to get it right and in fact that the legal system is designed to
and should guarantee the protection of the innocent, then I would suggest to
you that if we get it wrong at all, that's simply not good enough when the
sanction is so final.
DONALD EALEY: I'm Donald Ealey,
and I'm a retired teacher of political science. With regard to whether or not
the death penalty serves as a deterrent, I'd like to ask Samuel Millsap or
anyone else on the panel if he knows of anyone who was executed who has ever
come back to commit murder again. (Laughter.)
MR. MILLSAP: That's a wonderful rhetorical question and my
simple, quick answer is no. (Laughter.)
MR. STEVENSON: I guess the only other point I would make is
that we really need to understand this question of "right." Of
course people commit horrible crimes in this society; they should be punished.
This is not a question about whether we punish people who commit horrible
crimes. But let me also make the point that we do not get it right in a case
where there's overwhelming evidence of guilt if the prosecution withheld
evidence that would've been favorable, if we select a jury in a
discriminatory manner, if we don't provide the person with adequate
representation. Then we are undermining the commitment that we claim to hold
to make our rule of law meaningful. And so with all these reversals, not just
the innocence cases, no one, I think, can credibly assert in the death
penalty arena that we get it right 98 or 99 percent of the time. Most states
have actually reversed more cases by a huge margin on legal errors and other
factual errors than have gotten to execution.
MR. OTIS: Actually, I think your question makes more of a
point than it has been given credit for. We do know of a case. The
defendant's name was Kenneth McDuff. McDuff was convicted and sentenced to death in Texas for essentially a spree killing of three teenagers
that happened in the late 1960s. While he was still on death row, the Supreme
Court decided Furman v. Georgia, effectively nullifying the death
penalty in this country. McDuff's sentence was then
commuted down to life in prison.
Later on, with the help of those who must've been very shrewd and clever
defense lawyers, he convinced the parole board that he should be released and
he was released. After his release, Brenda Thompson, Gina Moore, Colleen
Reed, Melissa Northrup and Valencia Joshua — all
innocent people — were killed by Kenneth McDuff.
Had he been executed when he should've been, they would be alive today. If we
want to save innocent life, we can start with him.
BONITA SPIKES: I was waiting for this to come up and it
never did, but they really do execute more African-Americans than any other
race, and I think I'm going to ask Mr. Stevenson for some of those
statistics. I am an abolitionist in Maryland and there's only one white gentleman sitting on the
row. And I visit them all, but I would beg to ask you — it's too flawed to
fix, yes — but do you agree that most of the people getting executed are
people of color? That's my question.
MR. STEVENSON: Let me respond to that. Let me also just, Ms.
Spikes, thank you for being here. Ms. Spikes' husband was murdered in
Maryland in a robbery and she has spent all of her time working with
condemned prisoners in Maryland after losing the most precious person in her
life, and so I appreciate you even thinking about these issues in that broad
context. But, yes, I do think that we have not dealt with the issue of race.
The Supreme Court struck down the death penalty in 1972 after observing for
the crime of rape that 87 percent of the people executed in America between 1930 and 1972 were black men convicted of
raping white women. Everyone executed for that offense had been executed for
offences involving victims who were white. In the modern era, we still see
the same kind of race effects. Lawyers went to the United States Supreme
Court in 1987 saying that in Georgia you're 4.3 times more likely to get the
death penalty if the victim is white than if the victim is black, and the
court didn't deal with it. And I think that became sort of the Plessy v. Ferguson of our generation.
In my jurisdiction we see race manifesting itself in a variety of ways. As I
mentioned, 65 percent of all homicide victims are black, 80 percent of the
people on death row have been sentenced for crimes involving victims who are
white. And I think we are blocking the effort to confront honestly the
history of apartheid, the history of discrimination in this country, when we
tolerate this kind of bias. We've had 25 cases where courts have found
prosecutors illegally excluded people of color from jury service. I'm working
on two cases right now from majority black counties where minority defendants
are tried by all-white juries because we don't have a limit on the number of
preemptory strikes, so the prosecutor uses 22 out of 23 preemptors to exclude
every African-American.
And because we're not reacting to that as a race issue first and foremost,
but hiding behind our desire to get the death penalty, I think we do
compromise our efforts to deal with race and the history of racial apartheid
in this country. And we block much-needed progress to confront and create a
system of justice that is equal and fair.
And even the appearance of racism in this country with our history in the
region where all of these executions are taking place — let's face it, it's
in the states of the old Confederacy; that's where 90 percent of these
executions are taking place — even the appearance of race ought to be enough
for us to say this is not worth it. Is society really committed to
confronting our history of discrimination? Our commitment to confronting
race-bias injustice ought to trump our desire to be vengeful and have people
die in prison on a certain day rather than die after a life of imprisonment.
And so I do think race remains a critical issue on this topic.
MR. OTIS: Let me make a few observations. First, support for
the death penalty, as you probably know, in both the Gallup and Washington
Post polls, is at 65 percent. It has stabilized at about that over the
last four or five years. As I think I said —
MS. SLOAN: Excuse me, doesn't that depend on whether life
without possibility of parole is given as an option?
MR. OTIS: No, it doesn't. They have another question that
the Teeter poll asked. The question that the Gallup poll asked is, do you believe in the death penalty
as a punishment for persons convicted of murder? Sixty-five percent say yes;
I think 31 percent say no. Last night when I was doing my homework for this I
saw a 2003 Hart/Teeter poll that asked the question you're referring to,
which is a different question, which is, If the alternatives were the death
penalty or life without parole, which would you prefer? And by a small
margin, people still preferred the death penalty according to that poll 50 to
46 percent.
But there is an elaboration to this. As Bryan was saying, what we confront here is actually a
choice of penalties. Bryan, like some other abolitionists, has taken the
position that life without parole is just a slow-motion death penalty and has
said as much today. So the question actually being posed in these polls about
which penalty would you choose is misleading, because I would be willing to
wager a pretty considerable sum of money that as soon as the ink is dry on
any state bill that abolishes the death penalty in favor of life without parole,
there will be challenges the next day to life without parole as also being
cruel and unusual punishment because it does not allow for the prospect of
rehabilitation, because it does not allow for the prospect that someone — as
Karla Faye Tucker claimed to do — found God in prison, because older inmates
become infirm and it is cruel and unusual to keep such a person in prison.
And if I hear today from abolitionists that they will never support such a
challenge and will resist such a challenge should the death penalty be
overthrown in favor of life in prison without parole, I'd love to hear it.
But I haven't heard it yet.
MR. MILLSAP: I've supported life without parole for 23
years. I supported it while I was district attorney in San Antonio, and I would be willing to pledge that I would not
try to undermine it if it became the law throughout the land, as it is in Texas today.
MR. STEVENSON: The idea that we would keep the death penalty
because we're afraid what other reforms and efforts might be made after that
underlines the notion that we don't have a principled commitment to this
sentence. Our commitment is a political commitment. We're afraid of what
might happen next.
My view is that punishment should be appropriate. I think the death penalty is
always inappropriate. There are lots of clients whom I've represented who I
know will never be prepared to reenter society. I don't hide that fact. A lot
of them are very damaged, very dysfunctional people
and reintegration into society is very unlikely. But there are some other
clients who I think can, and I think that question should be based on
information in a particular case. If we think the death penalty is
illegitimate we should get rid of it. And if there are people who are
concerned about what happens after, we should deal with that. It's just the
promise of what more fairness might people be seeking, and we're going to
seek all the fairness that can be sought. But I don't see how that issue
undermines or impacts the death penalty.
MS. SLOAN: We are already a little bit past our time. I want
to thank everybody on the panel so much for a really wonderful discussion,
and I thank the audience as well for coming.
Speakers at Pew Forum
events are given an opportunity to review and approve their remarks. This
transcript also has been edited for clarity, spelling and grammar.
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