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A discussion on the effectiveness of the death penalty

The Death Penalty Today: National Press Club Washington, D. 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. A discussion on the effectiveness of the death penalty claim that if the death penalty can not be applied justly in all cases, it should not exist at all. 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 Projectheld 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.

Department of Justice, Washington, D. 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.

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 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 a discussion on the effectiveness of the death penalty 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. Cantu was executed in 1992; recent events indicate that he was very likely innocent.

Dean Starr has represented two clients of death row. And fourth will be William Otis, a longtime public servant who has served in the White House and as an assistant U.

  • 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;
  • Are there reforms to the system that you would support to try to cure some of those problems?

Otis is speaking today in his individual capacity. So after their brief opening statements we will invite questions from the moderator and the audience.

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 A discussion on the effectiveness of the death penalty 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.

There are four basic principles that underpin everything that I have to say. 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.

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: Do we have press people from Texas? 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.

  • He is on trial in federal court for waging deadly race wars in prison;
  • But the single largest reform truly is trial counsel adequacy;
  • 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;
  • And I wondered if Mr;
  • 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.

Carlos De Luna, the most recent, was probably innocent. And the person I prosecuted in 1985, Ruben Cantu, was probably innocent. What we see over and over again are situations where witnesses who have no reason to lie recant testimony and for good reasons. 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.

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 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.

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.

  • In other words, since the death penalty is a costly and inefficient system, its use will waste resources that could be expended on crime-fighting measures that are known to be effective;
  • Since murderers typically expose themselves to far greater immediate risks, the likelihood is incredibly remote that some small chance of execution many years after committing a crime will influence the behaviour of a sociopathic deviant who would otherwise be willing to kill if his only penalty were life imprisonment;
  • Simmons banning the execution of juveniles;
  • It is corrupting defense attorneys;
  • Most jurisdictions have life in prison without parole.

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. He is one of two heads of the Aryan Brotherhood. He is on trial in federal court for waging deadly race wars in a discussion on the effectiveness of the death penalty. 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. 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. By narrowing its reach, it reaffirms the fundamental proposition that the death penalty is justified.

  1. There is probably not one single abolitionist on the current court. And so many of the people who end up on death row are not people who commit terrorist acts.
  2. Most states have actually reversed more cases by a huge margin on legal errors and other factual errors than have gotten to execution. Stevenson would respond to Mr.
  3. And at that trial there were 22 defendants in the dock.
  4. I would like to see cases adjudicated on their individual facts. I have seen that not simply in Alabama; I have seen that in California.

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: 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.

It is rather part of our constitutional scheme.

The Death Penalty Today: Defend It, Mend It or End It?

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 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. 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. 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.

Lack of evidence

Lincoln took time to review personally the files of those seeking clemency. It was part of his greatness. 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.

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.

I think it has to be abolished. When you start working on this issue, one of the fascinating things is all of the paradox, all of the irony.