NOTE: I will post a debate on a topic of this blog
every fortnight. It will be twice in a month.
As the death penalty
was abolished in Illinois on this month, March 2011, I will post this debate to
mourn the sad day.
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Judge Alex Kozinski
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Scott Turow
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November
7, 2002 | Recorded on November 7, 2002
WITH DEATH DO US PART? Reforming the Death Penalty
with
guests Alex Kozinski and Scott Turow
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?
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.
[Music]
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.
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