Supreme Court Renews Death Penalty Debate

VIRGINIA SLOAN: Well, we've "been there, done that," as they say. And, as Kent started out by saying, we have been through a number of methods of execution, and society has gradually seen how they work and has turned away from them in looking for something else that they think is more humane, if there is something more humane in this context.

But the electric chair has its own serious consequences. There was a case in Florida where somebody's head caught on fire, and it was -- it was apparently a terrible experience, not only for the person who was being executed, but also for the people who were witnessing it. So, the -- the electric chair is no solution, either.

KENT SCHEIDEGGER: I --

RAY SUAREZ: Kent Scheidegger?

KENT SCHEIDEGGER: -- certainly wouldn't go back to the electric chair, no. As far as gas goes, the real problem with the gas chamber was simply the gas they had chosen to use. There was an article in a Mayo Clinic publication recently where the author suggested that use of an inhaled anesthetic would avoid a lot of the problems with injection.

Of course, one problem is, these methods are generally fixed by statute, and anytime you require a statutory change, you open up a new opportunity for people who cannot get through legislation to abolish the death penalty to, nonetheless, block legislation needed to maintain it. So, if you require a new statute, then you offer that kind of political opportunity. So, there's a problem there with anything that requires a statutory change.

RAY SUAREZ: Arnold Schamban writes, from Ventnor, N.J., "Why is it difficult to establish a protocol that would result in a painless execution?"

And, pursuant to that, Mary Kohanski writes, from East Lyme, Conn., "Is there any reason why the states aren't simply changing the current drug protocol without waiting for Supreme Court review? There must be hundreds of ways of terminating life with less controversy."

KENT SCHEIDEGGER: Well, many states have. Tennessee had a review of its protocol. Florida had a review of its protocol, and they have -- they have made changes. And yes, it is -- it is painless, if done correctly.

VIRGINIA SLOAN: I think, though, that there are still going to be challenges even to those -- to those changes. I'm not a doctor, I can't address what does and doesn't work, so to speak. But I know that -- some of the people who are making these changes are also not doctors, and I don't think that we can be entirely sure that the changes they're making are sufficient to avoid the problems that have been revealed in lethal injections.

But I think the questioner raises a very good point, there are states that are resisting making any changes at all, or are resisting revealing what kind of protocols and what kind of process and what kind of people they're using for lethal injection. And it's obviously virtually impossible to examine the process under those circumstances.

RAY SUAREZ: Well, following on your point, Alexander MacKensey asks, from Gainesville, Fla., "Why do states like New Jersey have a death penalty but a moratorium on actually carrying them out?"

VIRGINIA SLOAN: Well, New Jersey does not have an official moratorium; New Jersey is examining whether to abolish the death penalty, and there is apparently a very good political chance that that will happen. There was a state commission that was -- that included prosecutors and victim advocates and defense lawyers and law enforcement officials, and it concluded that the death penalty simply was not working in that state, it was -- it was much too costly, and that there was really no way to reform the process to make it fair and accurate, and that, therefore, it should be abolished.

RAY SUAREZ: Kent Scheidegger, aren't there a number of states where, if there's not a de jure moratorium, there's a de facto one, where --

KENT SCHEIDEGGER: Yeah.

RAY SUAREZ: -- people are sentenced to die, but simply aren't executed.

KENT SCHEIDEGGER: Right. And New Jersey is one of them, because their state Supreme Court has been extremely hostile to the death penalty and has found some reason to overturn every conceivable -- every case that comes before them. And I testified before the committee that Virginia refers to, and it was -- in no way was it a balanced commission, it was set up for an anti-death-penalty result and was not genuinely interested in fixing the system. That was my experience, testifying before them.

VIRGINIA SLOAN: Well, I have talked to other people who have testified before the New Jersey commission who believed just the opposite, that it was a very fair and balanced commission and that it struggled with the issues, and this was the result that they came up with.

But, you're right, there are other states, certainly, that have a de facto moratorium because there are just so many problems with the capital punishment system that they have been unable to proceed, and I think there's more and more of an awareness that, because capital punishment is the ultimate punishment and you can't go back once you've executed somebody, that you have to have absolutely every protection in place, especially with the number of exonerations that we've seen. And that's extraordinarily costly. We are seeing, in Georgia, with the Brian Nichols case, they -- the breakdown of the system as a result of those costs.

And Paul Connelly writes, from Los Alamitos, Calif., "Who cares about what these people want. They are the worst in our society."

But, Kent Scheidegger, do we take that into account when we draft our laws concerning how to carry out these penalties?

KENT SCHEIDEGGER: Well, certainly this is a punishment. It is the punishment for the very worst murders. And that is certainly a fact that needs to be considered. And I think it is an issue to be considered, that there really isn't any right to a completely painless death. We need to be sure we don't torture people, but having absolutely painless death is not a requirement. Very few of us are going to die painless deaths.

And the issue of cost, I think it's an important thing to point out that a very large portion of the cost presently involved in capital punishment has nothing whatever to do with whether we have the right guy, whether he's guilty or not. We spend huge sums that we don't need to spend agonizing over the penalty phase and reviewing it four and five and six times. And, I think, on the cost issue, it's a matter of whether we need to spend as much as we're presently spending.

VIRGINIA SLOAN: Can I respond to that?

RAY SUAREZ: Sure. Virginia Sloan.

VIRGINIA SLOAN: I think, first of all, the question that these two questioners have raised, about having the worst of the worst in prison on death row, is exactly the reason why the American Bar Association has just called for a moratorium in every state that has capital punishment, because we are not sentencing just the worst of the worst to the death penalty. There is really a completely haphazard system, based on racial disparities, based on geographical disparities, based on a whole host of factors that have really nothing to do with determining who is the worst of the worst, and who gets sent to death row and who doesn't. A lot of it depends on whether you have a good lawyer, and that, of course, depends on whether you have the money to pay for a good lawyer or there is a good public defender system in place. And, in many cases, there is not a good public defender system in place.

And that gets to the -- to the other issue that Kent just raised. The reality is, is that we do need every process and every protection that is in place, and we need more protections in place, to make sure that we are getting the right people, because we have seen well more than 100 people who have been released from death row as a result of DNA testing or other kinds of evidence that have proved that they were not the right people. And --

KENT SCHEIDEGGER: That is --

VIRGINIA SLOAN: -- so, we have --

KENT SCHEIDEGGER: -- false.

VIRGINIA SLOAN: -- to be very careful.

KENT SCHEIDEGGER: That list is not a list of people proven innocent. That is false, and I have refuted that time and time and time and time again, and yet --

VIRGINIA SLOAN: Well, there's --

KENT SCHEIDEGGER: -- I hear it every time --

VIRGINIA SLOAN: -- a very big --

KENT SCHEIDEGGER: -- I debate --

VIRGINIA SLOAN: -- a very big --

KENT SCHEIDEGGER: -- the death penalty. That is not true.

VIRGINIA SLOAN: There is a very big difference of opinion about the list that Kent and I are talking about. It's the Death Penalty Information Center's list of people who have been given clemency or release by a court or otherwise exonerated or pardoned. And, be that as it may, there are well over 100 people who were on death row who are no longer on death row, as a result of a Governor's action or a court's action. And I think we need to be very clear that we do not necessarily have the worst of the worst in prison and on death row, and that we are making mistakes, and that every protection that the legal system offers is critically important to reduce the number of mistakes.

KENT SCHEIDEGGER: Let me just add one quick note, if I may, about --

RAY SUAREZ: Sure.

KENT SCHEIDEGGER: -- what kinds of people are on death row. I've been working in this area for 20 years, and I've done many, many, many capital cases. I have never worked on a single capital case where I read the facts and concluded, after the facts, that, even though the guy was guilty, he didn't deserve the death penalty. Every one of them has been a deserved punishment, at least in my own view.

RAY SUAREZ: Well, I guess a lot of people's misgivings about the death penalty come on the borderline between punishment, as you point out, is the -- is the cornerstone of the sentence, and vengeance or retribution, which is a different kind of idea.

KENT SCHEIDEGGER: Well, no, retribution is part of punishment. I mean, retribution is basically the idea that people ought not get off with less than they deserve; and that is one of the rationales, although not the only one, for any punishment, whether it be --

RAY SUAREZ: But we don't rape rapists or --

KENT SCHEIDEGGER: Well, you're --

RAY SUAREZ: -- beat assault- --

KENT SCHEIDEGGER: That's a different --

RAY SUAREZ: -- -and-battery convicts or torture torturers, we --

KENT SCHEIDEGGER: No, but we do imprison kidnapers. Okay? So, that argument doesn't work either direction. Sometimes we do to the defendant what he did to the victim, and sometimes we don't. It's not a clear "always" or "never."

VIRGINIA SLOAN: I think that's certainly true. I think that, as the issue of cost comes to the fore, as -- certainly as the issue of exonerations and mistakes by the criminal justice system come to the fore, that juries are starting to worry about this and to impose the death penalty less often. And, I think, legislators are starting to listen and to understand the problems in the criminal justice system. There are a number of legislators, state and federal, who have been turned around on this issue, who were originally death penalty supporters and who no longer can support it.

It's not that they necessarily oppose capital punishment, as a moral issue, but they have seen that the system simply doesn't work, that -- the same is true of prosecutors. Sam Milsap, a Texas prosecutor who described himself as a former full-throated supporter of capital punishment, is now going around the country, working with the Constitution Project, to advocate for reforms and even abolition, because he has seen that the system simply doesn't get it right, and needs to get it right more than it does.

RAY SUAREZ: Kent Scheidegger, earlier Virginia Sloan referred to "haphazard" application of the penalty.

KENT SCHEIDEGGER: Uh-huh.

RAY SUAREZ: Is there a problem there, that, depending on who you are, depending on who your victim was, depending on your financial state, your ability to hire outside counsel, there is a broad continuum of the quality of legal help you'll get, the quality of outside discovery and investigative power you can bring to bear, those kinds of things?

KENT SCHEIDEGGER: There are some differences, state-by-state, as far as how much is spent on defense. But then, there are also differences in how much they spend on prosecution. I mean, states with better-funded prosecution also have better-funded defense.

As far as the persistent claim that there's racial bias, I think we have seen many, many studies, including some by the other side themselves, refuting the notion that the race of the defendant is a major factor.

VIRGINIA SLOAN: It's not the race of the defendant that is the major factor, and I don't think there are --

KENT SCHEIDEGGER: Good, I'm glad we agree --

VIRGINIA SLOAN: -- many studies that --

KENT SCHEIDEGGER: -- on that. I --

VIRGINIA SLOAN: -- that claim that. The studies show that it's the race of the victim that matters, and that --

KENT SCHEIDEGGER: Yeah, the studies --

VIRGINIA SLOAN: -- and that --

KENT SCHEIDEGGER: -- don't actually show that.

VIRGINIA SLOAN: -- people who -- that people -- when the victim is white, the defendant is much more likely to be sentenced to death than if the --

KENT SCHEIDEGGER: The most recent and most sophisticated study along those lines was the one at the University of Maryland. And it, initially, if you look at the statewide data, appeared to show that, but then, when they broke it down county by county, that effect disappeared. And so, what was really happening was that the death penalty was being used less often in the urban jurisdictions, where most of the black-victim crimes occurred, that it wasn't really a racial matter, it was a --

VIRGINIA SLOAN: Well, what --

KENT SCHEIDEGGER: -- a local matter.

VIRGINIA SLOAN: -- what Kent is raising is another big problem, and that is geographical disparity. Prosecutors have the discretion to decide whether to prosecute a case as a -- as a capital case or not, and there are some prosecutors who prosecute every case, or nearly every case, as a capital matter, and then there are others who prosecute very few, and so -- and there is some difference, depending on whether it's urban or rural, or, in some -- on some cases, it's whether you walk across the street to a different county.

KENT SCHEIDEGGER: Yeah, we call that --

VIRGINIA SLOAN: So, there is a --

KENT SCHEIDEGGER: -- democracy.

VIRGINIA SLOAN: -- geographical disparity that is quite distressing, as well.

KENT SCHEIDEGGER: Yeah, we have local democracy and we have jury of the vicinage, and those do produce differences in criminal justice policy by county, and that's exactly how the system is designed to work. We could elect our prosecutors statewide and eliminate that, but we have chosen not to in this country, we've chosen to give people control over their local area, and that's -- that's our system, as designed.

RAY SUAREZ: Is there a --

VIRGINIA SLOAN: But the problem --

RAY SUAREZ: -- bit of a --

VIRGINIA SLOAN: -- of course, is --

RAY SUAREZ: -- a paradox, Kent Scheidegger, in the way states are handling this? To the degree that, while it would be very popular, if you put it out to plebiscite, "Yes/No -- capital punishment, yes or no?" and the yes vote would win -- when it comes to the actual application of the law, it turns out people are less willing to see it as a widely used penalty, that the ardor cools once the plebiscite is over.

KENT SCHEIDEGGER: No, I wouldn't -- I wouldn't -- I'm not quite sure what you're -- what you're saying there. I mean --

RAY SUAREZ: Well, there are full death rows across the country, where --

KENT SCHEIDEGGER: Yeah.

RAY SUAREZ: -- no one's clamoring to clear it out, clear out the backlog and start a --

KENT SCHEIDEGGER: Oh. Oh, oh.

RAY SUAREZ: -- a conga line to the death chamber.

KENT SCHEIDEGGER: There certainly is a large sentiment to speed these processes up and have these executions carried out. It's not well publicized, and it doesn't get a lot of press, but it certainly exists. I don't think you've accurately characterized that.