SALES OF A DEATH PLAN: Capital Punishment

Tuesday, February 15, 2000

Is America on the wrong side of the death penalty debate? The worldwide wide trend is against the death penalty: more than half the countries in the world have abolished it, including more than 30 nations since 1990. So why do we have a death penalty in America? Is it to deter people from committing murder? If so, does it work? Or is the death penalty fundamentally a matter of justice, of punishing appropriately those guilty of the worst crimes?

Recorded on Tuesday, February 15, 2000

Peter Robinson: Welcome to "Uncommon Knowledge." I'm Peter Robinson. Our show today: The Death Penalty. The scene is one with which we're all familiar, if only in B movies. The warden waits to perform his grim duty. The clock, one second after another, ticks past. The telephone: will the governor call to commute the sentence, or won't he?

Yet here we are in the 21st century, and this scene still takes place, not just in movies, but in reality. Half the world's nations have abolished the death penalty, 30 since 1990. Yet here in the United States executions are actually on the increase. Last year alone, the United States carried out 98 executions. Only China, Iran, and the Congo carried out more. Why?

Is the death penalty intended to deter murder? If so, does it? Is it intended to enforce justice? If so, is it just?

With us today, two guests. Sam Jordan is director of Amnesty International's program to abolish the death penalty here in the United States. Kent Scheidegger is legal director of the Criminal Justice Legal Foundation. He considers the death penalty an essential part of our criminal justice system.

Should we continue to carry out the ultimate sentence? Or is time for the death penalty running out?

Sales of a Death Plan

Each year about 10,000 people in the United States are convicted of criminal homicide--10,000. About 300, or 1 in 33, is sentenced to death. And each year between 75 and 100, the number varies somewhat, or about 1 in 250, is actually executed.

Ten thousand convictions. Between 75 and 100 executions. Is the number of executions too high or too low?

Sam?

Sam Jordan: We think there should be no executions whatsoever?

Peter Robinson: Your ideal number is zero?

Sam Jordan: There should be no executions whatsoever. In fact the numbers prove that executions have nothing to do with stemming the tide of homicides.

Peter Robinson: Kent.

Kent Scheidegger: The number is too low. Executions in cases that are free of substantial error and free of any real doubt about guilt should be carried out within a reasonable time.

Peter Robinson: What is a reasonable time?

Kent Scheidegger: I'd say on the order of four years after sentence?

Peter Robinson: Four years? Okay.

Sam Jordan: Well, let's add another number there. That is, that there are roughly about 18,500 homicides. The number of convictions of course is much smaller. But when you look at the actual number of homicides, the number of convictions, then to the number of death sentences, and those actually executed, you see again that executions is not a public policy instrument that has anything to do with the prevention of crime or homicide.

Peter Robinson: Your argument then, this leads us to the very important question of whether the death penalty acts as a deterrent. And your argument is that it doesn't.

Sam Jordan: Our argument is proven that it doesn't. There are jurisdictions that don't have a death penalty.

Peter Robinson: Here let me give you a couple of figures that I found. The South, the old Confederacy, accounts for about 80 percent of executions; it also has the highest murder rate in the nation. The Northeast accounts for only one or two percent of executions, and has the lowest murder rate in the nation. So you get this lack of correlation. Is that proof that it does not deter?

Kent Scheidegger: No, actually, you have the cause and effect backwards. It's the jurisdictions that have the lowest murder rate in the first place that find that they are willing to dispense with the death penalty. If you'll look at the timing of that, you'll typically see that they had the lower murder rates before the abolished the death penalty.

Peter Robinson: They had lower murder rates in the first place? Sam, Justice William Brennan wrote in 1994 that the death penalty is imposed, I quote, in a freakish manner. Would you agree with that?

Sam Jordan: I would agree with that. In fact, I think what he went on to say is that there is no method whatsoever to its imposition. It's totally arbitrary.

Peter Robinson: Okay, now, let me play a game of "gotcha". If the death penalty is imposed in a freakish manner, it's arbitrary, it lacks any systematic coherence, how can you say that it is or isn't a deterrent? It simply hasn't been attempted, it hasn't been applied in a systematic way?

What I'm pushing you on a little bit is whether you can prove that there is any lack of correlation there?

Sam Jordan: Well, I think what we have found --

Peter Robinson: …precisely because it's applied so freakishly…

Sam Jordan: …is that it can't be applied systematically. There is no way to apply it systematically.

Peter Robinson: Therefore it cannot possibly deter.

Sam Jordan: And that is what Justice Brennan said.

Peter Robinson: Okay, Kent, now have you got--how do you deal with this whole question of deterrence?

Kent Scheidegger: As far as scientific studies, they go both says. And so it's a toss up. You can cite studies in either direction. I think it is a basic principle of human behavior that costs matter, and penalties matter, and incentives matter. That is the basis of much of psychology and all of economics. And so you would expect, on the basis of that general principle, that an effective death penalty would have a deterrent effect.

Peter Robinson: Because it makes sense. It just makes instinctive sense?

Kent Scheidegger: That would place the burden of proof on those who claim that this one aspect of human behavior alone is different from all the others that we know about.

Peter Robinson: Do you have an answer for that?

Sam Jordan: I think that argument totally misses the question. What we've noticed in the past few years is that the supporters of the death penalty are increasingly associated with those who don't really want to examine the way in which it is imposed. The argument we're hearing now--

Peter Robinson: If the death penalty were imposed fairly, would it deter homicide?

Murder Most Fouled Up.

Let us suppose that an ideal world could be achieved in which the death penalty were imposed in a just, fair, even-handed way, and murderers knew that there was a high likelihood that they would be punished with their own lives. Would you believe, would you suspect, that in that case, the death penalty would deter?

Sam Jordan: No.

Peter Robinson: You wouldn't?

Sam Jordan: And you're not describing an ideal world. You're forgetting something--of course, an ideal world supposes that there is a reason to respect human life. We see this as a human rights issue. Not just as a matter of law and practice, but as a human rights issue. And in an ideal world, what you'll find is that with more attention given to prevention, more attention given to applying the sociological sciences that we already know and have at our command, we would have fewer homicides. We would have fewer long-term punishments even.

In an ideal world we would not use a death penalty. In fact, 108 nations around the world have already abandoned it.

Peter Robinson: We'll get to those in a moment as well. Let me just round out this question of deterrence. You'll grant, then, that the evidence is so mixed that one cannot draw a conclusion. No sociologist can go out, scoop up a bunch of evidence, come back and say, decisively, say the death penalty does act as a deterrent or it doesn't, right? You'd grant that?

Kent Scheidegger: The studies are not definitive either way, that's correct.

Peter Robinson: Not definitive either way. So you are forced to make an assertion about human nature, psychology, and so forth. And he rebuts it. And there the question of deterrence stands. That's about the best we can do.

Sam Jordan: I also say that those studies are not as inconclusive as he claims here this morning. The studies increasingly demonstrate that not only is there no connection, there is a disconnect between the death penalty and crime. There is also a tendency, and studies are beginning to show this, of a brutalization effect. That within two months of publicized execution, we have an increase in stranger homicides. So I think--

Peter Robinson: Stranger homicides?

Sam Jordan: Stranger homicides. The majority of homicides are among acquaintances, family members.

Peter Robinson: People who know each other.

Sam Jordan: People who know each other, eat at the same dinner table. There's a smaller number of homicides among strangers. Stranger homicides show a tendency to increase following executions.

Peter Robinson: Brutalization. Do you have an answer for that?

Kent Scheidegger: Only my previous assertion that the studies are mixed, they go both ways.

Peter Robinson: Okay, let's move on the next question here. Let's move from utilitarian questions to questions of justice.

A Capital Defense

Kent, is it in and of itself just to punish a murderer by taking his own life?

Kent Scheidegger: For the worst class of murderers, which is the group we use for the death penalty for, yes, I believe it is just.

Peter Robinson: And you don't believe--how do you answer Sam's assertion that punishing murder by, again, taking a life, does violence to the very notion of the sacredness of life?

Kent Scheidegger: Well, I answer that argument by analogy. What do we do to a person who has committed the crime of kidnapping? Who's taken a person away forcibly and locked him up? We take that person away forcibly and lock him up. We do that even though we value liberty.

Everything we do to punish crime is, in a sense, cruel. But we do have crime. We do need to punish it. And we do need to punish it severely enough.

Peter Robinson: Why is it inadequate simply to put a murderer away for life without the possibility of parole?

Kent Scheidegger: That's an essentially undebatable question. I mean people either believe it's right or they don't.

Peter Robinson: Oh, come on, you're a lawyer. You spend your life filing briefs in this matter. You must have something to say about it.

Kent Scheidegger: Nonetheless, nobody ever succeeds in shaking anybody's belief on this point that I know of. I believe that it is an inadequate punishment for someone like a John Gacy or a Charles Manson.

Peter Robinson: Both especially gruesome serial killers.

Kent Scheidegger: To simply put them in prison for life. I don't believe that that is a severe enough punishment as a matter of justice.

Peter Robinson: Sam, listen to this quotation from David Gerlenter. David Gerlenter speaks with a certain authority here, because he himself opened one of Ted Kacyzinski, the Unabomber's, bombs, and had a badly--in fact, he nearly lost his life. He did not, but he nearly lost his life.

Gerlenter writes about the death penalty as follows, I quote: When a murder takes place, the community is obliged, whether it likes it or not, to clear its throat and step up to the microphone. Every murder demands a communal response. The death penalty is uniquely powerful. Deliberate murder, the community announces, is absolutely intolerable.

The corollary of all that is that mere life sentence without parole is somehow inadequate to the demands of justice; inadequate as a communal statement.

Sam Jordan: Our system and our concepts of justice have evolved. We used to burn people--

Peter Robinson: Mark that, because we'll ask you about that.

Sam Jordan: We used to burn people at the stake. The Bible calls for execution of disobedient children. So we can say that these standards have evolved, and that's what we are doing now. We are evolving. In fact, we are in a period now where increasingly family members of the victims of homicides are stepping forward and saying, we don't want an execution.

Peter Robinson: Give us a couple of examples.

Sam Jordan: We have an organization, national organization, called murder victims' families for reconciliation. They are over 10,000 strong around the country now. In fact, Bud Welch, whose daughter was a victim in the Oklahoma bombing, is a speaker around the country speaking to this issue.

Peter Robinson: I have a couple of others for you that I came across on the Internet. Mrs. King, Coretta Scott King.

Sam Jordan: Of course.

Peter Robinson: Robert Kennedy's daughter who married Andrew Cuomo.

Sam Jordan: Carrie Cuomo.

Peter Robinson: Thank you very much, Mrs. Cuomo. They are two family members who are opposed to the death penalty.

Sam Jordan: Those are high profile examples. There are other examples in churches, in community organizations, who go out to speak, to healing in their communities, opposing taking another life where the life has been lost.

Peter Robinson: Are you ready counselor? Our standards of justice are evolving, and you are behind the evolutionary curve?

Kent Scheidegger: I think the assumption there is that evolution must always trend toward lesser and lesser punishment. And I don't believe that's true. I think it's quite possible to go too far in that regard. We saw the crime rate rise in the '60s and '70s because we had gone too far in lowering punishment. And it's only when we toughened up on punishment that we brought the crime rates back down.

Peter Robinson: 108 countries have abolished the death penalty.

Kent Scheidegger: Well, they make their decisions based on what they want to do. Western Europe abolished the death penalty then it uses its economic muscle to try and bludgeon, frankly, other countries into abolishing the death penalty--

Sam Jordan: No, no, no.

Kent Scheidegger: --in order to get into the community and get the economic advantages.

Sam Jordan: They make their decisions based on their experience with crime. They make their experience based on what they want to achieve as a public policy. They're asking themselves a question--we're not asking ourselves. They're asking themselves: what is the objective of criminal justice?

Peter Robinson: What is the objective? You answer that question.

Sam Jordan: The objective is to prevent crime.

Peter Robinson: Ah, so you have a utilitarian objective, and your objective is to do justice; am I reading that correctly?

Kent Scheidegger: No, our objective is both. And if I may contradict you, we have asked ourselves that question at great length, and we have answered that question.

Peter Robinson: We being the American--

Kent Scheidegger: The American people. I mean this question has been debated vigorously for many many years. We have asked the question and we have answered it.

Peter Robinson: Studies show that the imposition of the death penalty varies according to race. How do our guests respond?

A Race for Answers

The death penalty: is it racist? We begin with a Professor David [Baldis] who found that in Georgia during the 1970s a person convicted of killing a white person as opposed to a black person was 4.3 times more likely to be sentenced to death. The Stanford Law Review goes through the figures and find similar disparities in Arkansas, Florida, Georgia, Illinois, Mississippi, North Carolina, Oklahoma, Virginia. Earlier this year when Governor Ryan of Illinois announced his moratorium on the death penalty, one of the news items that came out was that the overwhelming majority of inmates on death row in Illinois are Hispanic or Black. Kent.

Kent Scheidegger: Okay, let me start with the Baldis study in Georgia, because that is a very very misunderstood study. If you want to know the truth, look at the District Court's opinion in the McCloskey case, it's in Volume 580 of the Federal Supplement, a very careful, very--

Peter Robinson: You're going a little fast.

Kent Scheidegger: The McCloskey case was a case that eventually went to the Supreme Court. But the District Judge's opinion did a very thorough analysis of that study. And here's what the study really showed.

Peter Robinson: The Baldis study?

Kent Scheidegger: The Baldis study. First of all, there are a lot of problems with the study. But the first thing he looked at was whether there was race of the defendant bias.

Peter Robinson: Race of the defendant rather than the victim.

Kent Scheidegger: This study found that in Georgia in the '70s there was no discernible bias based on race of the defendant. Black defendants and white defendants got the death penalty equally. That is a very significant result, and one that hasn't gotten anywhere near enough attention.

Then they turned their attention to race of the victim bias--

Peter Robinson: Right, which is what the study alleged.

Kent Scheidegger: The four times figure is not an accurate representation of what that study shows. The District judge found that if you accept Baldis' model, which is a big if, there is a slight shift on race of the victim. And if you are a little bit less likely to get a death sentence where a black person is a victim, what that means is, the death penalty is not being imposed often enough in black victim cases. It does not mean that anybody on death row is there who shouldn't be there. They all got the right sentence based on the benchmark of our society.

Peter Robinson: But killers of black victims got away.

Kent Scheidegger: A few of them. A few of them. Nowhere near four times.

Sam Jordan: The explanation is far too long to answer your question. And there is a reason why.

Peter Robinson: It's a complicated study.

Sam Jordan: The study isn't really that complicated. It asked a very basic question, and it uses over 270 different statistical treatments to arrive at its conclusion, so it isn't taken lightly. In the State of Kentucky, 20 years have passed over 1,100 African-American victims of homicide, not one person on death row in Kentucky for the murder of an African-American.

Peter Robinson: My question would be: why do you hold that against the death penalty? The racist application of the penalty, or at least unfair application of the penalty, surely that could be fixed without eliminating the penalty altogether.

Sam Jordan: I'm going to answer your question.

Peter Robinson: Go ahead.

Sam Jordan: But the distribution of punishment in this society follows the same pattern as the distribution of any other--of social resources generally. For example, the distribution of educational resources in this country follows a pattern of wealth and race.

Peter Robinson: White people do better?

Sam Jordan: Wealthy white people get a better education.

Peter Robinson: Right, okay.

Sam Jordan: Well, the same is true with any punishment in society. The people who get the most of the best make sure they get the least of the worst. So you wouldn't expect wealthy white people to be on death row, and wealthy white people absolutely are not found on death row. It follows that. So that's one thing.

Peter Robinson: It's poor, disadvantaged, African-Americans--

Sam Jordan: Exactly. What the pattern shows is that the people who are most likely to get the worst punishments in the society, including a visit to death row--death row is a club that rich people can't join. These people are poor people and people of color. Look at California. You can look at Kentucky, the example I gave you. Anywhere around the country.

Now the question is: I won't have Kent debate with me Baldis' study. What we are asking Governor Ryan to do in Illinois is take a new look at the study if he wants. Forget the past. Look at what he has on death row in Illinois. Look at what he has in terms of error by prosecutors, police departments, and the judges.

Peter Robinson: Let me talk about Governor Ryan.

Da Chairs

Governor Ryan of Illinois has come up several times now. Let's take a closer look at what he has done.

Earlier this year, George Ryan, a Republican, who favors the death penalty, in principle, and is the governor of Illinois, announced a moratorium on the death penalty in his state. Governor Ryan noted that since 1977 twelve people have been executed in Illinois, but just since 1987 thirteen people have been set free or removed from death row because they were found to be innocent, or their prosecution, appeals and so forth, was found to have been so botched that--

Sam Jordan: They were wrongfully convicted.

Peter Robinson: --they were wrongfully convicted, thank you very much. Governor Ryan said this, and I quote him: Until I can be sure that everyone sentenced to death in Illinois is truly guilty, no one will meet that fate.

Now, Kent, I put it to you, that this is the big problem for proponents of the death penalty. Governor Ryan will never be certain that everyone sentenced to death in Illinois is truly guilty, because we are all human beings, we make mistakes. And furthermore, the criminal justice system is heavily bureaucratic, cumbersome, it is more likely to make mistakes than a number of other institutions that one could point to, and that won't change. Kent?

Kent Scheidegger: Well, first of all, I think Illinois has a unique problem. And I think it's probably appropriate to have a short halt there as needed to restore public confidence.

Peter Robinson: Why is it unique?

Kent Scheidegger: Well, they've had an unusual problem as far as what you were talking about with the misconduct allegations?

Peter Robinson: Bad cops and bad DAs?

Kent Scheidegger: Yeah. Now, I would also hope that they would move quickly, once they recognize certain cases that do not involve any substantial question of guilt, to lift the moratorium on those cases. Now I also want to draw a distinction: when you talk about the number of people removed from death row--

Peter Robinson: Thirteen since '87.

Kent Scheidegger: Yeah, and there's a national list too. A lot of people running around claiming that anyone removed from death row has been proven innocent, that is not the case at all.

Peter Robinson: That's not even close to the case.

Kent Scheidegger: That's not remotely close to the case. People have been removed from death row because their convictions of guilt were overturned for various reasons, some kind of trial error. And then for one reason or another, could not be successfully be re-prosecuted.

Our system builds a lot of escapes in order to avoid convicting innocent people. And sometimes guilty people slip out through those escape hatches.

Peter Robinson: Let me put this to you, Sam.

Sam Jordan: Yeah, I think--

Peter Robinson: Let me put a specific question to you. We now have DNA testing, becoming more and more famous and being used more and more extensively, now the first effect of the DNA testing, or the first publicized effect of DNA testing, is that quite a large number of people we thought were criminals have been found to be innocent.

However, DNA testing will become more and more widely used, and it will serve to eliminate doubt about guilt and innocence more and more. That is to say we will achieve greater and greater certainty that this murderer is the murderer. Doesn't that argue in favor of the death penalty, or at least argue that we can all sleep a little better at night as the death penalty is performed?

Sam Jordan: Well, I think that's the way in which DNA used more broadly will certainly demonstrate, and achieve, a greater degree of certainty about the persons convicted, perhaps. And I think that's the general direction of the use of DNA, and we applaud that.

But what we end up with is, do we need the death penalty, not only do we need certainty about the persons being convicted, but do we need the death penalty? We can't escape that question.

Peter Robinson: I just asked Kent a tough question for death penalty proponents. Now a tough question for Sam.

Shocks Populi

The American people answer your question, do we need the death penalty, they answer that question yes. A Harris poll, Harris poll, shows that Americans favor the death penalty by 71 percent to 21 percent. That's better than three to one. There isn't a presidential candidate who wouldn't do anything to get those--that's a big margin, Sam.

Sam Jordan: That's important. That Harris poll is the current Harris poll.

Peter Robinson: Why are you right and the American people wrong?

Sam Jordan: Four years ago it was 78 percent. And let me tell you what's going on here. When those same respondents to those polls are asked: Would you employ, or would you choose, an alternative to the death penalty, if an alternative were available, then support for the death penalty falls below 50 percent.

Peter Robinson: An alternative being …. life without parole?

Sam Jordan: That's one alternative. That's an alternative. Or a term of years. When alternatives are available--here's what I'm getting at, is that an informed public makes a choice for alternatives. An informed public chooses to be certain. An informed public chooses to make sure they're not killing innocent people. An informed public chooses to make certain that we're not just killing off the poor people and unfortunate people of color who happen to be in this system at this time. They're not saying, we don't want to punish criminals.

Peter Robinson: Gee, I think you still got a problem, Sam. Because this majority has remained large for over a decade now. That's an expression of the settled will of the American people.

Sam Jordan: When England abolished the death penalty--and I know this is not England, but this has been true in a number of other countries--when England abolished the death penalty in 1956, sixty-five percent of the people still supported the death penalty.

Peter Robinson: So you had an elite contravening the will of the people. We don't do that here.

Sam Jordan: The issue is--of course we do that here--the issue is, should the state be an instrument of personal revenge? The answer is no.

Peter Robinson: Personal revenge?

Kent Scheidegger: No, it's not personal revenge. It's justice imposed by society as a whole. But to get back to your point on the polls, the polls actually understate support for the death penalty because they're not phrased to reflect current law. They're been asking the same question since the '50s.

The polls phrase the question to imply that we're going to impose the same penalty on all murderers. The correct way to phrase the question would be: What penalty should we impose on the worst murderers? And they aren't phrased that way.

Peter Robinson: And your contention is that if those questions were asked, the poll numbers would be even higher?

Kent Scheidegger: I think they would go up. I think support would be even higher.

Peter Robinson: Gentlemen, let me ask you to make a prediction, each of you. As I said when we opened, we have between 75 and 100 executions a year in the United States today. Quite apart from whether you think we ought or ought not to have more or fewer, the question to you is, do you think we will have more or fewer 10 years from now. Will the number of executions in the United States be higher or lower? Kent?

Kent Scheidegger: I think it will rise for awhile. We've settled the major questions in law on capital punishment. And a lot of the reversals were because of unsettled questions of law. So we will see an increase. Hopefully then they'll decrease as the rate of murder continues to go down.

Peter Robinson: Sam.

Sam Jordan: I think people will see we're not bound by the law, as Kent puts it. What we will be bound by is the same concern that caused Governor Ryan to call for a moratorium. This--no one is comfortable with executions anyway. No one is happy with killing. What we will find, I believe, in the next three to five years is a dramatic decrease in the number of executions, and more jurisdictions opting for moratorium or abolition.

Peter Robinson: Sam and Kent, thank you very much.

One of our guests believes the death penalty is here to stay, and should be here to stay. The other believes the death penalty should be abolished and will be abolished, as more and more states enact moratoria, like the one in Illinois. So for the months and years to come, the question remains: will the death penalty itself be put away, or--

[phone rings]

--granted a reprieve. I'm Peter Robinson. Thanks for joining us.