WITH DEATH DO US PART? Reforming the Death Penalty

Thursday, November 7, 2002

It's been more than 25 years since the Supreme Court reinstated the death penalty in 1976. For most of that time, the number of executions in this country climbed steadily higher. In the past several years, however, the death penalty has come under increasing criticism. Executions have fallen nationwide from a high of 98 in 1998 to 66 in 2001. Two states, Illinois and Maryland, declared moratoria on the death penalty over concerns that the death penalty could not be administered fairly. Is the death penalty immoral in and of itself? If not, is it unconstitutional? What is required to ensure that the death penalty is administered with fairness, justice, and accuracy?

Recorded on Thursday, November 7, 2002

Peter Robinson: Today on Uncommon Knowledge, is it time to throw the switch on the death penalty?

Announcer: Funding for this program is provided by the John M. Olin Foundation and the Starr Foundation.


Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today, the death penalty--is it time to bury the death penalty or bring it back to life? It's been more than a quarter of a century now since the Supreme Court reinstated capital punishment in 1976. For most of that quarter of a century, the number of executions carried out in this country each year rose steadily but in recent years, the momentum may have shifted. Two states, Illinois and Maryland, have declared moratoria on the death penalty. In 2002, two Federal Judges declared the federal death penalty unconstitutional and the number of executions carried out has fallen from a high of 98 in 1998 to 66 in 2001. Is the death penalty unconstitutional? Is it immoral? Are we executing too many people or perhaps too few?

Joining us today, two guests. Judge Alex Kozinski sits on the Ninth Circuit of the United States Court of Appeals. Scott Turow is an attorney who is a member of the Illinois Commission on Capital Punishment. He's also a best selling author whose latest novel is about the death penalty, Reversible Errors.

Title: With Death Do Us Part?

Peter Robinson: Pope John Paul II: "There is a growing tendency in civil society to demand that capital punishment be applied in a very limited way or even that it be abolished altogether." It's been abolished in Canada. It's been abolished in the European Union. Wouldn't we be saving ourselves a lot of trouble if we simply abolished it here? Scott Turow?

Scott Turow: Yes.

Peter Robinson: Judge Alex Kozinski?

Judge Alex Kozinski: Yes. But life is trouble.

Peter Robinson: Life is trouble. All right. I want to leave plenty of time for discussing ways of reforming the death penalty but it's impossible to raise the issue without raising basic moral questions. So we have traditionally a couple of justifications for the death penalty. One is the notion of deterrence; we'll get to that. But the other is even more fundamental. It's that certain crimes are so heinous that putting to death those who commit them is the only way to satisfy the demands of justice. The death penalty is an end in itself. Does that argument have weight?

Judge Alex Kozinski: Considerable weight. Immanuel Kant said it best. He said a society that is not willing to demand a life of somebody who has taken somebody else's life is simply immoral.

Peter Robinson: Scott?

Scott Turow: I don't have any problem with the concept of what I refer to as moral proportion. The problem however, is if you apply this notion of ultimate justice and ultimate punishment for ultimate evil, it places an enormous burden of precision on the justice system. It must be able to identify what ultimate evil is and it must be able to identify who committed it and it must be able to do that virtually unfailingly. Otherwise you begin to undermine the morality that you think you're protecting.

Peter Robinson: Okay. So let me give you one example. We have the Washington sniper.

Judge Alex Kozinski: I can't talk about the sniper…

Peter Robinson: You can't?

Judge Alex Kozinski: …because it's a case that might be pending in the courts. But let's talk about a dead case, McVeigh.

Peter Robinson: All right. All right, McVeigh.

Judge Alex Kozinski: McVeigh. Lots of dead bodies. After he had a trial, he has seventeen lawyers appointed. Not a figure I'm making up. It costs five million dollars to pay for his defense team. When all is said and done, a jury comes back with a guilty verdict. Death penalty is imposed and right before he takes a lethal injection, what does he do? He says yeah I did it. I'm glad. No remorse. There was no racial bias. The jury looked just like McVeigh. This guy was not retarded. He was articulate. He was smart. It was not somebody who did it because of mental illness or anything of that sort. This was embodiment of evil. So the question really and I'm not sure that Scott disagrees with me on this, when the system works and when you manage to identify somebody who has done such heinous evil, do we as a society have a right to take his life? I think the answer's plainly yes. And I would go with Kant and I would say it is immoral for us not to.

Peter Robinson: So would you grant then that a starting point in talking about ways of reforming the death penalty is as follows: We must reserve a death penalty because there are certain cases on which everyone would agree that it's simply demanded.

Scott Turow: No.

Peter Robinson: You won't buy that formulation?

Scott Turow: No. The mistake we make and the mistake I made frankly and a long time in my own sort of confused thinking about capital punishment, is that we allow these particular cases like McVeigh, a terrible crime, to be our way of addressing and thinking about and resolving the issue of capital punishment instead of sitting back and saying okay, there are these horrible cases. There's an argument that many of our citizens recognize as compelling and surely what the judge has just postulated is a point of view that's broadly shared. But without asking, can we really construct a system that will reach those cases? There is, of course, no death penalty statute in the country that limits executions to the killers of 168 people. That's not how these statutes work. And the problem is not in the impulse, although there are people who have deep moral reservations about the impulse, but rather in what kind of system you construct and we have failed time and time again.

Peter Robinson: On to the second major justification for the death penalty, deterrence.

Title: Give 'Em Enough Rope

Peter Robinson: 2001, three economists at Emory University published a study, careful statistical analysis; they conclude that the death penalty does indeed have a deterrent effect. Statistician Ian Murray summarizes the findings, "Each execution deters other murders to the extent of saving between 8 and 28 innocent lives, with the best estimate average of 18 lives saved per execution." Now does that finding feel reasonable to you based on your experience and what you know about the death penalty?

Scott Turow: I am familiar with the study. I am familiar with the studies that preceded it. I am familiar with the stinging criticisms of them that have been engaged in, including by a panel appointed by the National Academy of Sciences. I do not accept personally the econometric bases of these studies but…

Peter Robinson: Right.

Scott Turow: …even if they were correct, they are so specialized that I would say to you that an argument that depends on a bunch of experts saying trust me in an issue that is as fundamental to the nature of a democracy simply can't be resolved that way.

Scott Turow: No, because when you start quarreling with these people, what they say is well you don't have a Ph.D. in economics. You can't understand what I'm saying.

Judge Alex Kozinski: You don't need a Ph.D. in economics. What do you do about Christopher Scarver? What do you do about Ambrose Harris? Remember Christopher Scarver? He's the guy who in the State of Wisconsin, that has no death penalty, took an iron bar and beat to death Jeffrey Dahmer and Jesse Anderson.

Scott Turow: Are we assuming that he committed murders before?

Judge Alex Kozinski: Yes, he did. He was on with a life sentence already that, most serious punishment that Wisconsin can impose so there was nothing else they could do to him. So he took an iron bar and he killed Jeffrey Dahmer. We know for a fact statistically--not statistically--experientially, that people who commit crimes, who commit murders and are let out, go out and do it again. If you don't let them out, they escape. In escaping, they kill people. In escaping they kill guards. If they don't escape, they kill others. In prison, there is example after example…

Scott Turow: All right. Let me note a few things. One, we've already tabled the issue of deterrence so we'll assume that the arguments on that one are not compelling.

Peter Robinson: Are you going to grant that?

Judge Alex Kozinski: I don't need to grant it. I am willing to accept the study; I'm willing to accept that it is debatable. I'm willing to--and I think it is a point--a data point of being considered. But we don't need it.

Scott Turow: So then we come to the issue of recidivism among murderers. The argument about capital punishment is not an argument for early release programs. It is an argument--for example, the commission I sat on in Illinois said that in any case where there is a death eligibility, that case if the death sentence is not imposed, it ought to be resolved with life in prison without parole. I don't think escape is a major problem. The…

Judge Alex Kozinski: The major problem is with the people who get killed by the people who do escape.

Scott Turow: The judge is certainly right that there are people who are killing machines, who will kill when given the opportunity. What do we do with those people? I made it a point to go visit the Supermax Facility in Illinois, the Tamms prison. It took a lot of begging and pleading for me to get down there while I was on the commission because they don't like to allow outsiders to visit. But I wanted to see Tamms because I wanted to know for myself whether it was possible to design conditions of confinement that would address the issue the judge is raising. And I believe that Supermax facilities can indeed do that and I would also venture to say…

Peter Robinson: Meaning eliminate the possibility of escape?

Scott Turow: They eliminate the po--let me just explain what a Supermax is for a minute.

Judge Alex Kozinski: We have one in California and it's called Pelican Bay.

Scott Turow: Pelican Bay.

Peter Robinson: Go ahead tell us though what a Supermax is.

Scott Turow: Well a Supermax, at least the way the Tamms facility is constructed, a prisoner is in an eight by ten preformed concrete block. He has no flesh-to-flesh contact with any other human being ever.

Peter Robinson: The food gets slipped in through a slot…

Scott Turow: A sally port, that's right. Once a day for one hour, the door is opened by remote control, prisoner is allowed to go down a corridor and take fresh air for an hour and there's also fifteen minutes to shower. There is basically constant surveillance of those prisoners. It's very tough confinement.

Judge Alex Kozinski: We have a facility like that in California. And we put people in there and we put them just above the level of an animal. What they have there is no longer a life, as a human being knows it. We essentially--it's closer to being dead than it is to being alive. We turn them into animals or dehumanize them. And we may salve our conscience in saying well we didn't execute anybody, we're keeping them alive, but what we're doing to them is every bit as dehumanizing as executing them.

Peter Robinson: Next topic: to what extent have the problems with administering the death penalty been created by the courts themselves?

Title: Death-Defying Acts

Peter Robinson: I sense a political trajectory that can be described over the last quarter century or so and I may be wrong about this so I want to put it on the table briefly and have you both bat it down or say no, there's something to it. It runs as follows: Opponents of the death penalty have always been a minority in this country.

Scott Turow: No.

Peter Robinson: No?

Scott Turow: No, there was a point in about 1965 where opponents of…

Peter Robinson: It was a majority?

Scott Turow: It was a majority.

Peter Robinson: All right. So since 1966, opponents have been in a minority in this country.

Scott Turow: Okay.

Peter Robinson: Haven't been able to persuade the American people for the last thirty years anyway. So they used the courts to work their will, placing restrictions on the death penalty of every kind imaginable and now having made capital punishment costly and cumbersome, they complain that capital punishment is costly and cumbersome. That is to say, this unworkable machine has been constructed by the Supreme Court and opponents of the death penalty operating through the court, and the fundamental problem is not that somehow the death penalty is costly and cumbersome and unworkable in and of itself, but that the popular will of the American people has been thwarted again and again and again for thirty years.

Scott Turow: No. First of all the cumbersome, unworkable machinery has been created by a court that is disposed to--that has declared capital punishment to be within constitutional bounds. What the court has said is that death is different. And indeed it is different. It is for a democracy to take upon itself the killing of another citizen, recognizing that the citizens are the supreme authority, is a very large step and one that has to be exercised with utmost care because--one of the reasons that our friends in Western Europe cannot envision capital punishment is because they have been through the experience of seeing their democracies fall and other governments take their place. And they say, many of them, I never want the state to be able to kill again so that it is clear when the state kills that it is an act of a despot and not a democracy.

Peter Robinson: You'll go for that?

Judge Alex Kozinski: Not at all. I think the Europeans have a lot of gall teaching us about morality. I mean, they've had two world wars and the holocaust on their territory. I don't think that they can teach us anything about morality. We've had a consistent death penalty in this country going back to the early days of the common law. We have never executed people en masse. We've always done it according to due process of law. Even in the west when they had Wild West law, there was a concept of due process--not maybe due process as Scott and I would think is appropriate, but there was always a concept that people get executed by the state only if proven guilty and proven guilty by a whole lot of other evidence.

Peter Robinson: On to reforming the death penalty. Let's begin with Scott Turow's recommendations.

Title: Die Another Day

Peter Robinson: Scott has sat on a commission of fourteen people appointed by the Governor of Illinois and you recommended 85 reforms.

Scott Turow: Right.

Peter Robinson: Let me name three. Alas, it's television. We have to engage in tremendous compression, all right.

Scott Turow: Okay.

Peter Robinson: Videotaping the interrogation of suspects in death penalty cases. Why is that important?

Scott Turow: It's important because the problem of false confessions as, for example, the jogger case in New York has recently illustrated or many of the cases in Illinois, is a pronounced one. And if you begin videotaping an interrogation from the time that Miranda warnings are appropriate, you're going to have a much more complete picture of how it is that the defendant confessed. Most of the time, by the way, this will be of enormous assistance to law enforcement because it will do away with a lot of claims of coerced confessions.

Peter Robinson: Videotape interrogations. You go for that?

Judge Alex Kozinski: You know, I am not all that familiar with law enforcement techniques so I'm willing to be educated on this point. It strikes me as faddish and likely to cause more harm than good. I'm willing to be persuaded on that.

Peter Robinson: But so--all right--another one of…

Judge Alex Kozinski: If this is really a good technique, why limit it to death cases?

Scott Turow: I agree.

Judge Alex Kozinski: I mean we throw people into prison for forty years--forty years. Imagine having forty years cut out of your life. That is practically death. Well if it's really such a great idea for the death penalty, why not do it for all investigation.

Scott Turow: We'll start with death cases and we'll see how it works.

Peter Robinson: Okay, if you're--Turow is now advising the Illinois legislature. We in California will watch them. Prohibit death sentences when a defendant is convicted on the testimony of a single witness, a jailhouse informant or an accomplice. Scott?

Scott Turow: You know…

Peter Robinson: Speaks for itself?

Scott Turow: Speaks for itself. It may fit within our classic fact finding standards but we can all recognize what the hazards are in single witness cases.

Judge Alex Kozinski: I have a hard time generalizing that there may be lots of cases where there are more than one witness, they're very weak. And there may be cases where a witness and corroborating testimony…

Scott Turow: No, uncorroborated is what the recommendation was.

Judge Alex Kozinski: You know whether something is corroborated or not is a bit…

Scott Turow: It's a legal question.

Judge Alex Kozinski: …is a bit of a judgment call. Again from my training in the common law, we used to have, for example, you can't be convicted of treason under the Constitution unless you have two witnesses, you know. This is sort of the concept of formal proof. It's a very continental concept. And…

Peter Robinson: And therefore to be viewed with suspicion?

Judge Alex Kozinski: Absolutely. Anything coming out of Europe with the exception of England, of course, is to be viewed as suspicion.

Peter Robinson: Banning the execution of the mentally retarded…

Scott Turow: Yes.

Peter Robinson: …speaks for itself.

Scott Turow: Not only did it speak for itself; it's now the law of the land.

Peter Robinson: That's over. That's over. The Supreme Court is--does that one…

Judge Alex Kozinski: Until the Supreme Court changes course, I think it is the law of the land.

Peter Robinson: You just will not accept…

Scott Turow: I think though that the judge is actually making a point that, you know, no jurisprudence is more dynamic than death penalty jurisprudence. And if you think you're offering comfort to victims by telling them this person is going to be executed sometime in the offing, I differ with that for just that reason. I don't know what the percentages are but there are many, many families across the United States who were told that this person who was mentally retarded is going to be executed, now they're going to go through it all again.

Peter Robinson: Now let's turn to Judge Kozinski's reforms.

Title: Capital Ideas

Peter Robinson: Again I quote him to himself: "Only two solutions suggest themselves, one judicial and the other political." The judicial solution is "unlikely to happen." Now the judicial solution is what? And why is it unlikely to happen?

Judge Alex Kozinski: Declare the death penalty unconstitutional as defined in the Eighth Amendment. It's unlikely to happen because the Supreme Court I think has pretty much committed itself to the view, and I think correctly so, that the death penalty is, in fact, constitutional.

Peter Robinson: So the Supreme Court…

Judge Alex Kozinski: I think it's very hard to come to that decision…

Peter Robinson: The court will neither rule it unconstitutional nor make it easy. They're going to torture us all.

Judge Alex Kozinski: None of the current justices take--Justice Brennan, Justice Marshall, who are on the court until about eight years ago, were of the view that the death penalty is never constitutional. There's no justice that holds that view. Now Justice Blackmun in his very last term…

Scott Turow: "I no longer shall tinker with the machinery of death."

Judge Alex Kozinski: None of the current Justices take that view so I can see no possibility that the majority of the court will take that view within our lifetime. Scott?

Scott Turow: Within our lifetime? I wouldn't venture to say that. I certainly would venture to say that in the near term, certainly not in the next decade.

Peter Robinson: All right. We now turn to Judge Kozinski's political solutions: "State legislatures should draft narrow statutes that reserve the death penalty for only the most heinous criminals, mass murderers, hired killers, airplane bombers, for example." Now that dovetails exactly with one of your recommendations, doesn't it?

Scott Turow: It does. It does. And let me tell you why…

Peter Robinson: Why is this important? I want to hear--this point on which you both agree, both of you tell me why that's important.

Scott Turow: Well it's important because right now when you look over death penalty jurisprudence; you find two groups of people there. One, people who I'll refer to for shorthand as monsters who've committed horrific crimes.

Peter Robinson: The McVeigh's?

Judge Alex Kozinski: Gacy's.

Scott Turow: McVeigh, Gacy, you don't have to go that far. There are cases less horrible than that that are still unbelievably horrible. You also find a lot of people where you say how in the world did this case get here? How is this a--how did this person earn the same punishment as John Wayne Gacy? And we have too many trap doors through which defendants can fall. And you end up with an absolute moral hodge-podge in terms of who is on death row. So the theory is limit the circumstances. Be far more careful about who you are going to put there. But there is a big problem in doing this as we have discovered in Illinois. The Chairman of the Illinois Senate Judiciary Committee, a man named Kirk Dillard who is a very good, decent guy, commented offhand to a reporter when this proposal was leaked the day before the report came out. He said, well that's headed straight for the trash bin. Why is it headed straight for the trash bin? Because American legislators will not be soft on crime, will not be confronted with the prospect of having to campaign in the future with somebody saying, he reduced the death penalty. They all want to be…

Peter Robinson: Can I just ask you--so we have now…

Judge Alex Kozinski: They just made the wrong argument is the problem. You see, what happens now, we have 3000 or 4000 people on death row. We execute something like 50 or 60 a year.

Peter Robinson: Right.

Judge Alex Kozinski: We never get to them. So the good, the bad, the ugly, the heinous and, you know…

Peter Robinson: And of that 50 or 60 a year, that's--if one may use the term, garden variety murders, intermixed in a haphazard way with monsters.

Judge Alex Kozinski: Exactly. But we're spending money--we're spending societal resources to put 3000 people on death row at the rate of about 600 a year. We actually spend more than that because some people get tried for capital murder. We spend the resources; we give them the extra lawyers. We spend the extra investigators and so on and they don't get the death penalty. So it's extremely expensive.

Peter Robinson: Finally, some last thoughts on reforming the death penalty.

Title: Last Words

Peter Robinson: If I made then both of you not author and attorney and not judge but co-emperors for a day, is the outcome that you would like…

Judge Alex Kozinski: As in Rome...

Peter Robinson: …is the outcome that you would like to see that we continue to execute say 50, 60, 70 people a year but that the number of people who go on death row is 50, 60 or 70? Once you're condemned to death, there's a very high, much higher likelihood that the execution will actually take place and that all those 50 to 70 people are in the monster category. Is that roughly what you'd like?

Judge Alex Kozinski: It's what I would like.

Peter Robinson: And does that suit you?

Scott Turow: I think it will never happen. And we have…

Peter Robinson: Because it's politically untenable?

Judge Alex Kozinski: You didn't answer the question.

Peter Robinson: No, he said he'd like it.

Scott Turow: We have not…

Judge Alex Kozinski: Oh, did you?

Scott Turow: We have not addressed the issue of innocence. We have not even begun…

Peter Robinson: You know, he doesn't buy that. I have a quotation in here somewhere, Judge Kozinski, innocence--innocent defendants are very rare and innocent convictions in capital cases are even rarer or words to that effect.

Judge Alex Kozinski: And innocent people who have been executed are non-existent.

Scott Turow: Well that, as I've said before, is unprovable. That's…

Peter Robinson: We're coming to the end of our time, but can you briefly tell us what happened in Illinois?

Scott Turow: Well, in Illinois we had 13 people--we've executed 12 since death penalty was reestablished in 1977. We've exonerated 13.

Judge Alex Kozinski: See, the system works. The system works. These are not people who got executed and then we found out that they were--that they were innocent. In fact, the two times--once in Virginia and once in Texas where the guy said, give me my DNA, give me my DNA and they stopped the execution, Governor George W. Bush, stopped the execution. In Virginia, they stopped the execution; they gave him the test, proved the guy did it.

Scott Turow: So why do prosecutors resist doing it?

Judge Alex Kozinski: I don't know. I can't speak for prosecutors but I--what I can tell you is that in a sane society, we can in fact, in a society that's willing to commit itself to it, we can in fact determine who is guilty and who is innocent.

Peter Robinson: So how would you sell it, Judge?

Judge Alex Kozinski: I would sell it on dollars and cents. I would sell it and say it's an expensive enterprise, we're putting a lot of people on death row, it's incredibly expensive to put them and keep them there. We execute very few. Much better to do what you said--I mean, what you represented as what I would want, and that is to be very, very careful, really only go after the really terrible, heinous guys…

Peter Robinson: Monsters.

Judge Alex Kozinski: …in the way in which in an Illinois committee--commission make really, really, really sure that they did it. Do it quickly. Just do--do exactly what they did with McVeigh.

Scott Turow: Let me tell you about…

Judge Alex Kozinski: Do it quickly, do it publicly, spend the money to do it right and then execute.

Peter Robinson: Both of you advocate reducing the number of capital crimes. Five years from now, how many states will have done so in a way that impresses you?

Scott Turow: Zero.

Peter Robinson: Zero?

Judge Alex Kozinski: Two.

Peter Robinson: Which two, Illinois and California?

Judge Alex Kozinski: Right.

Peter Robinson: All right. Each year in the United States we put 60, 70 people to death. Five years from now, will that number be higher, lower, about the same? Scott?

Scott Turow: My bet from the seat of my pants is probably about the same.

Peter Robinson: Judge?

Judge Alex Kozinski: It's been inching up. It'll be higher.

Peter Robinson: It'll be higher?

Judge Alex Kozinski: It'll be higher. It'll be higher.

Peter Robinson: Scott Turow, Judge Alex Kozinski, thank you very much. I'm Peter Robinson for Uncommon Knowledge, thanks for joining us.