Life or Death
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GWEN IFILL: It was his last official act. Saturday, George Ryan, the outgoing Republican governor of Illinois, granted clemency to all 167 people on death row, reducing their sentences to life without parole. The day before, Ryan pardoned four others sentenced to death for murder, releasing them from prison outright. He called the Illinois criminal justice system “wildly inaccurate, unjust, and unable to separate the innocent from the guilty.”
Since the Supreme Court reinstated the death penalty in 1976, 38 states have allowed capital punishment — 820 people have been executed. But 102 people in 25 states have also been exonerated, released from death row after new, exculpatory evidence has emerged. George Ryan’s actions raised new questions. Can a single state executive wipe out the death penalty? Should he be able to? Could this happen anywhere else?
We debate that now with Kent Scheidegger, legal director for the Criminal Justice Legal Foundation. Robert McCulloch, prosecuting attorney for St. Louis County, Missouri, and president-elect of the National District Attorney’s Association. Bryan Stevenson, director of the Equal Justice Initiative in Montgomery, Alabama, and James Liebman, professor of law at Columbia University. Professor Liebman, can what happened in Illinois happen anywhere else?
JAMES LIEBMAN: It certainly can. What we found is that…we did a big national study and found that the error rate nationally in capital cases is 68 percent. In Illinois, it’s slightly below that, 67 percent. So these problems are festering all over the country and could explode just as they have in Illinois.
GWEN IFILL: But politically is it possible? Is it feasible for another governor to be able to take the law into his own hands as Governor Ryan did?
JAMES LIEBMAN: Well, I think what one hopes will happen is that legislators in these states where reform packages are pending in many states will step forward and adopt reforms that will keep the issue from reaching the crisis stage that it reached in Illinois when the legislature refused to act. So I think you will see that kind of reform happening all over the country in order to head off these kinds of problems.
GWEN IFILL: Mr. Scheidegger, do you agree with that?
KENT SCHEIDEGGER: No. There was no crisis in Illinois. Certainly a governor is justified in granting clemency in an individual case if there are problems or doubts at the end of the process if we have any doubt whether the person was actually guilty. But what he did was substitute his view of what ought to be capital punishment law for the law of the state of Illinois. The legislature simply didn’t agree with him and did not agree with the commission that he had stacked with death penalty opponents. As far as the error rate goes, a great many so-called errors are simply changes in the rules after the trial has occurred or there are courts that don’t like the death penalty looking for excuses and Monday morning quarterbacking the defense player. So I wouldn’t put too much stock in that error rate.
GWEN IFILL: Let’s get to that in a moment and give everybody else a chance to respond. I’m curious what Bryan Stevenson thinks about the first question — whether what happened in Illinois is something that’s likely or possible to happen in other states.
BRYAN STEVENSON: I certainly think it is possible. We have to remember that this is not the first time that an outgoing governor commuted death sentences. Toney Anaya did it in New Mexico; Governor Celeste did it in Ohio. It got a lot of attention here because of the volume that Governor Ryan dealt with. But I think it is something that we can expect to potentially happen other places for the simple reason that people have been complaining about problems of unfairness and unreliability in death penalties all across this country and legislators and courts and policymakers and prosecutors have looked the other way.
The Innocence Protection Act has been languishing in Congress for years. Very few states have enacted reforms to correct these problems. And so increasingly executives, political executives, are going to have to deal with these problems. The court, the United States Supreme Court, has held that they expect executives to deal with these problems. In the Texas case, the United States Supreme Court said we expect governors to deal with problems particularly around issues of innocence. They’ve basically barred certain claims from being presented in federal courts on that theory so I think we have to expect politicians to play a more significant leadership role in dealing with these issues.
GWEN IFILL: Mr. McCulloch as the incoming president of the National District Attorney’s Association, what is your response to Mr. Stevenson’s contention that basically district attorneys were not doing their jobs and so the governor had to step in.
ROBERT McCULLOCH: I think that’s just an irresponsible comment — pretty close to being as irresponsible as Governor Ryan’s conduct was in this case. The greatest fear for a prosecutor is not that the guilty man is going to walk down the street but that there will be an innocent man put in the penitentiary and put on death row.
Even if you look at the logic behind Mr. Ryan’s action, it is completely illogical. There is no logic behind it because according to him he doesn’t want any innocent man on death row but it apparently doesn’t bother him to have all these innocent men serving life without parole. There’s just no logic behind that. Our responsibility as prosecutors is to see that the right thing is done, that the guilty are punished, that the innocent are not punished. And to suggest that somehow we’re just that callous and uncaring is absurd.
GWEN IFILL: Let me ask you to respond to something Mr. Scheidegger raised a moment ago, which is about the error rate in these convictions. You say that a lot of these people are not actually innocent. There are reports that show that there is quite a high error rate — one taken in Maryland recently.
ROBERT McCULLOCH: Well you take particularly the report conducted by Professor Liebman has been debunked in several places. It’s been reviewed by several people looking at it from a statistical standpoint who are actually looking at the cases themselves. And there are cases that shouldn’t be included in that very similar to the claim that 102 or whatever it is people on death row have been exonerated. When you look at those cases closely, what you find out is that the case was reversed, they were taken off death row, but they’re not exonerated. They’re far from being innocent. The case in Pennsylvania, for example, that was barred, the retrial was barred by the double jeopardy clause, they include him on the exonerated list when even the federal court stated that there’s absolutely no question about this guy’s responsibility, guilt on those murders.
So it’s just that the rabid anti-death penalty people are not honest in these situations. They want to include anything and everything that is going to bolster their position and skew the items. There’s no question that some of the people who were released from death row absolutely were innocent, but not to the extent that it was and they’re attempting to create this hysteria resulting in this nonsense that they had in Illinois.
GWEN IFILL: Well, let me give Professor Liebman a chance to defend his work.
JAMES LIEBMAN: What we found is we looked at every single death sentence in the country and just asked what did the courts, the state courts mostly, that reviewed these death sentences find? What we found is that 68 percent of the time the court said this death verdict is too unreliable to be carried out and do it over again or scrap it. In over 82 percent of the cases, they ended up with life sentences. Nine percent of them ended up with acquittals-findings of not guilty. Most of the errors in these cases were egregious ineffective assistance of the counsel, prosecutorial misconduct, judges telling jurors how to decide the cases in an improper manner. What they show is what the District Attorneys Association itself has said: We need better attorneys in these cases. We need to get DNA and other evidence of innocence available to people. We need to use the death penalty more judiciously to reserve it for just the worst of the worst.
GWEN IFILL: Once again, excuse me for interrupting. Beyond Illinois, how widespread is this?
JAMES LIEBMAN: It’s widespread. It’s everywhere. We found that almost every single state in the country has an error rate of 50 percent or more. Almost every year in which the death penalty has been invoked in the modern era, the reversal rate, the error rate, has been over 50 percent. This issue is festering all over the country and there are reforms pending in a lot of cases across the country. We need to adopt those reforms so that this problem can be solved.
GWEN IFILL: Mr. Scheidegger, when you hear numbers like this and reports like this, do you wonder or worry at all that the system is flawed?
KENT SCHEIDEGGER: No because he’s using the term error rate in a way different than the man on the street would use it.
GWEN IFILL: Explain to us.
KENT SCHEIDEGGER: When he talks about errors, he’s talking about grounds for reversal based on Supreme Court precedent most of which has to do with the penalty phase of the trial and has absolutely nothing whatsoever to do with the accuracy of the guilt determination. When you hear error rate, don’t think that means actual innocence because these are typically claims where there’s a case of no doubt whatever of guilt and where the so-called error is based on a rule invented by the Supreme Court with no basis in the text or history of the Constitution. It does not….
GWEN IFILL: To be clear, the distinction you’re making is between innocence and people who should die for their crime?
KENT SCHEIDEGGER: Right. And we have a very elaborate set of case law created by the Supreme Court to govern the penalty phase of the trial. Whether those rules are good or valid or wise is a matter subject to debate. What’s not debatable is the court itself is constantly revising those rules and cases get overturned because a case was tried under the rules in effect at the time of the trial, which changes by the time the case is reviewed.
GWEN IFILL: Mr. Stevenson, how would you interpret this debate?
BRYAN STEVENSON: I mean it’s just really quite astounding to me that that argument is being advanced. We determine innocence in a criminal case based on application of the law. If the law is not applied fairly or reliably you cannot assert that this person is not innocent. The kinds of errors that we’re talking about in these cases are fundamental errors. The courts don’t reverse cases when they’re sure that the person is guilty. They reverse them when they’re convinced that the constitution of the law has not followed. We’re talking about bad lawyers. When you have a sleeping lawyer or a drunk lawyer, a lawyer who doesn’t show up, you cannot make a reliable determination of guilt. When prosecutors withhold evidence of innocence which has been the basis of a lot of these reversals you can’t make an assertion of innocence. When police torture a confession out of someone, you cannot rely on that verdict, when prosecutors exclude people of color. We just had the 24th reversal in our state this year where a federal court or a state court has found that prosecutors illegally excluded African-Americans from jury service. These kinds of errors are fundamental.
And there are those cases — I mean this debate follows the general debate which is why politicians like Gov. Ryan have to step in. Everybody says it’s not a problem. We will never deal with the problems that surround the death penalty as long as we deny that they have a very flawed, very unreliable system. We can improve it but we won’t as long as there’s all of this denial and looking the other way.
GWEN IFILL: Mr. McCulloch, is there room for the executive, as Governor Ryan did, to step in to fix this debate to try to moderate this debate to try to come up with a solution to at least the problems that you can acknowledge might exist?
ROBERT McCULLOCH: Well certainly not in the manner in which George Ryan did this. George Ryan granted blanket clemency, which is just reprehensible conduct if you grant that to any class of prisoners regardless of whether it’s on a death sentence or any other one. Certainly every executive of every state, every governor of every state has an obligation, that’s part of his job to make certain that things are running appropriately within his state. Now Governor Ryan was the major part of the problem — of Illinois’ problems but that’s a separate issue.
The whole problem in the death penalty debate as I said the numbers aren’t always accurate. The problem is the death penalty opponents have this terrible habit of skewing the numbers and not being able to get beyond that. They can’t get beyond these numbers. The reversal rates that they’re talking about, what these studies show is that a case may be set aside, a verdict set aside by one court but reinstated by the next court. That goes into the studies as the reversals and error rate on that. When you couple that with the hyper technical due process that is granted in death penalty cases, these cases are reviewed in much more detail, much more critically, as they should be– I don’t have any quarrel with that—but as they should be they’re reviewed much more critically than any other kind of case; even a murder case where the sentence is life without parole doesn’t get the sort of review that a death penalty case does.
So it shouldn’t come as a surprise to anybody that on these issues the matters are reversed at a higher rate certainly nowhere near 60 or 80 percent or the ridiculous number that was put out there but to suggest that they’re not reversed for minor reasons is ridiculous.
GWEN IFILL: Prof. Liebman.
ROBERT McCULLOCH: That’s just ignoring the obvious.
GWEN IFILL: Prof. Liebman, where do victims’ rights play in this? There are people who saw other people convicted of crimes against their loved ones released or having their sentences reduced this weekend. They feel that they were entitled, that justice was defined by the law as the death penalty and they’re not getting that.
JAMES LIEBMAN: Victims are the exact right perspective to consider here. Most people think that when a death sentence is imposed, it’s going to be carried out. They get expectations about that. The fact is in this country there is so much error in the system that about five percent, five percent of the death verdicts imposed on this country actually get carried out. If victims knew that and knew all of the anguish they were going to face only to realize down the road that that verdict was going to be overturned and then there was going to be a life sentence imposed, which is what happens in the average case, they would realize that we need to reform the system so that it works the way that they expect it to work.
GWEN IFILL: Mr. Scheidegger, is it possible that an action such as Governor Ryan’s this weekend might end up having a backlash which means that people may end up favoring criminal… the death penalty because they are so unhappy about the blanket nature of the commutation?
KENT SCHEIDEGGER: I think that’s quite possible. I think we have experience with that in 1972 when the courts arrogated to themselves the power to temporarily abolish capital punishment. After that we saw an increase in support for capital punishment. As far as what happens with the victims, what we need is for these cases to not be erroneously overturned. The correct judgments need to be carried out and they need to be carried out in a more timely manner.
GWEN IFILL: Final word from Mr. Stevenson — what should the correct judgment be, what can it be?
BRYAN STEVENSON: I think the notion that we’re doing something insulting or disempowering to victims by commuting a sentence to life in prison without parole reflects the way in which we’ve been skewed and corrupted by the death penalty. Only in a society where state governments are intoxicated with the power to kill would you view a sentence of life imprisonment without parole as a lenient sentence. It’s an extreme sentence. Many countries don’t even permit it because it’s too harsh.
Tonight the citizens of Illinois can go to bed not fearing that their state government are going to execute an innocent person. That can’t be said in any other state in this country where the death penalty is the law. Until that changes we’re going to have to see these problems continue.
GWEN IFILL: We’ll have to leave the argument there for tonight. Thank you.