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tv   UVA Federalist Society Death Penalty Debate  CSPAN  April 4, 2021 5:50am-6:53am EDT

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edge of morality. now the federalist society's debate on the death penalty. >> well, welcome, everyone, to our debate on the death penalty. my name is chloe knox. the federalist society is a group of conservative libertarians interested in the current state of the liberal order. [inaudible] and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. we are honored to be joined by professors carol steiker, bill
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otis, and jennifer gibbons. carol steiker's work emphasizes capital punishment. her most recent book "courting death" was co-authored with her brother from the university of texas school of law and published in 2016. she is a graduate of harvard law and went on to clerk for judge wright of the d.c. circuit judge justice thurgood marshall on the same court. in addition to her scholarly work, professor steiker has taken on pro bono litigation projects including death penalty cases. bill otis is an adjunct professor at georgetown university law center. before joining the faculty, he served in several roles in government, including chief of the u.s. attorney's office for the eastern district of
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virginia, counsel to the admin a stratum by the dea, and special counsel to president george h w bush. he is a graduate of stanford law, where he received the prize for legal writing. he has since written up its uncritical law for usa today, forbes, the washington post, and u.s. news and world report -- he has since written op-eds. his expertise centers on criminal procedure, punishment, and capital punishment. jennifer gibbons is an associate professor of law at the university of virginia and director of the innocence project clinic. she was a defender in the capital habeas unit in the district of virginia with the virginia representation resource center, where she represented inmates on death row. she has argued before virginia's supreme court and the fourth circuit. she is a graduate of depaul university college of law.
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professor gibbons will join us after the debate for audience q&a. for the audience, as you know, during the debate, you can summit questions via the q&a feature on your screen, or you can use the raise your hand function, and i will unmute you so you can ask your question allows. before the q&a, we turn to the debate function. professor steiker, you will go first, so i turn it over to you. professor steiker: thank you chloe, both for the generous introduction and for organizing this event. -- thank you very much, chloe. i extend those thanks to the university of virginia chapter and also to professor gibbons for moderating this event. the death penalty is dying around the world and in the united states. consider the world. in the 1960's, only about two
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dozen countries in the world had abolished the death penalty. today, 50 years later, more than half of the approximately two dozen countries in the world have fully abolished the death penalty for all crimes and more than 2/3 of the countries have abolished it in either law or in practice, meaning they have not executed anyone in a decade or longer and have no plans to do so. in addition to this worldwide phenomenon, this abolition is place very much in the united states as well. part of the reason is that the countries that maintain the death penalty in the world are not countries that we think of as our peer countries, the leading executing nations are china, iraq, iran. not the kind of countries that the united states is normally in a club with, but also because many of the concerns that i'm about to talk about in regard to the death penalty have informed
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state and local practice in the united states. consider two milestones that the death penalty has reached or that abolition of the death penalty penalty has reached in the united states in the last few months. president biden is the first president ever elected on an anti-death penalty platform, and virginia, where i'm sort of speaking right now, is the first state ever to repeal the death penalty, just waiting for the governor's signature. it will pass and become the 23rd state to abolish the death penalty. moreover, virginia is the state that has executed the most people ever, so those are two milestones, but they only represent the most recent phenomenon in the death penalty's dramatic decline in the united states and in the world. for example, in the modern era of capital punishment, since the
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1970's when the death penalty was temporarily abolished and then reinstated in 1976, the modern era high of executions reached 98 in 1999, whereas in the year 2019, that number was down to 34, and 18 in the covid year of 2020. moreover, executions reached -- sentencing reached its modern era high in 1996 when 316 people were sentenced to death. in 2019, only 34 people were sentenced to death, and down to 18 in 2020. this represents a decline of more than 80% in executions and more than 90% in capital sentencing. this is tremendous freefall in
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the past 20 years in the death penalty in the united states, and i'm here to argue to you that this is a good thing. i could argue, but i'm not going to, on the sort of primary, per se, moral acceptability of the death penalty, and i'm not going to argue on these grounds because i have found these kinds of arguments don't tend to change people's minds. i have never seen anyone's mind changed by these kinds of arguments, because they depend on a certain level of moral priors that are just taken as an article of faith, sometimes literally. that is some people are against the death penalty big -- against the death penalty like maybe catholics because the pope has spoken against it, or some people think their judeo-christian values or the muslim koran support the death penalty. some people have political views that the death penalty is a matter of international human rights, as all or most of europe
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does, whereas others feel that the demands of desert and retributive is him -- retributivism require we punish people with death. i have my views, which i'm happy to share in the q&a, but i will appeal to you on grounds where i have really seen people's minds change. that is pragmatic cost-benefit analysis that even if your moral prior support, even if you are enthusiastic the death penalty, you have good reason to oppose it. let me just give you an example, a counter to my opponent in this debate, another former federal prosecutor, kind of famously a novelist as well as prosecutor,
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who was very much in favor of the death penalty, but when he went into private practice, he ended up doing pro bono work on behalf of capital defendants in illinois and happened to represent one of those who had been wrongfully convicted and was eventually exonerated from death row in illinois. he was shocked, almost like lifting up a rock to see the unreliability of the system that underlay his client's wrongful conviction. he was pointed to be a reformer on a blue-ribbon commission to reform the death penalty, and to his own amazement, he and that commission voted that the death penalty should not be reformed. it should be abolished, and ultimately, the illinois legislature accepted that conclusion. he is one example, and a broader institutional example -- this is for you, law students out there
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-- is the american law institute, which wrote the famous model penal code, which many of you study in criminal law. the model penal code had a model death penalty statute, which in 2009 the al i voted to withdraw its support for. this model statute formed the template for the modern american death penalty in play today, but the al i wrote that it needed to withdraw support for those provisions "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." what are they talking about? what are the big problems with the administration of capital punishment in the united states today? i'm going to give you five. number one is that capital punishment does not and cannot serve any permissible, plausible
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purposes but punishment. the penalty is used so rarely -- we are talking a couple of dozen people now sentenced to death each year. there are tens of thousands of homicides but only a couple of dozen people sentenced to death, and they are not executed if they ever are -- and the majority of them or not, but if they ever get executed, it is decades, literally, now in the future, and the people who ultimately get these sentences and get executed are apparently arbitrarily and/or discriminatory leak chosen. this system cannot possibly promote things like deterrence for the closure for victims that we want it to. but let's just say even if you are still clinging to the belief that executions can in some cases do some good, number two,
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the cost of maintaining a capital justice system is untenable. is astronomical. every state -- and this is sort of counterintuitive. you might think that executing people would be cheaper than locking them up for the rest of their natural lives, but it turns out every state that has studied this and almost every death penalty state has studied the cost of its capital justice system -- it costs much, much more to run a capital justice system than an ordinary criminal justice system, even with the cost of lifetime incarceration included. let's take california. california has the largest death row in the united states, and it has executed only 13 people since 1976. if you add together the cost of all those capital prosecutions and the cost of maintaining death row and execution apparatus, and you divide that figure over the past 40, 50
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years, by the 13th execution that has been done, you get the -- wait for it -- whopping number of $500 million per execution. yes, you heard that right. half a billion, not million. $500 million for each execution. you have to ask yourselves -- what could a society do with $500 million to promote public safety or provide services to the families of murder victims with $500 million other than execute another person. granted, california is an extreme example because of the largeness of death row and the smallness of the number of people who have been executed, but some version of this ridiculously kind -- ridiculously high cost exists in every death penalty state. now i'm talking to you,
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federalist society members, especially your libertarian wing. the american death penalty is your classic, bloated failed government project. you of all people should be opposing capital punishment. you might think that because we spend all this money on capital punishment, the decisions that are made are fair and reliable, but even with spending all this money, the number of mistakes that are made in the capital system are enormous. number three is failure of due process. a study was done in the first 20 years of capital punishment and found there was a reversal rate ridiculously high of 68%. much, much higher than in the ordinary criminal justice system , because of the intense pressure on police and prosecutors to produce quickly charges and convictions that lead them to cut corners and rely on things like unreliable
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jailhouse informants, and this leads to number four -- the conviction and sentencing to death of innocent people. the death penalty information center maintains an authoritative list of death row exonerations since 1986 -- i'm sorry, 1976. 185 people exonerated off of death row, people who were either later pardoned or had all their charges dismissed or were acquitted after another trial. that is one exoneration for every eight point three people executed. absolutely un-acceptable. finally, it may not surprise you to know that racial disparities exist in who is wrongfully sent to death row, and in fact, in every other aspect of the death penalty system, a study shows that 96% of all studies done by states and private individuals
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of rates of the death penalty have shown either race of the victim or vase of the defendant -- or race of the defendant results in discrimination, or both. the last state before virginia to abolish the death penalty, colorado. the percentage of black people in colorado a popular -- like people in colorado's population is 9%. the percentage of black people on death row is 100%. i have many more things to say, but my time is up. thank you, and i look forward to hearing what my opposite number, bill otis, has to say. chloe: thanks so much, professor steiker. we are going to turn it over to professor otis for his response.
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professor otis: ok, can you hear me now? chloe: can you turn your video back on for us please? professor otis: ok. chloe: thank you. professor otis: there we go. are we good now? chloe: yes, we can see you. professor otis: ok, good. thank you very much. i very much appreciate the opportunity the university of virginia federalist society has given. i'm pleased to see the university of virginia continues to host debates about emotional subjects that may make people uncomfortable. i think that is what universities are for. in deciding if virginia was right to abolish the death penalty, it is important to examine a recent experience in another state, massachusetts, that abolished it in 1984.
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about 30 years later with nobody -- with no death penalty on its books, the state nonetheless found itself facing a capital murder trial. one of the victims suffered wounds before he died. the coroner described his wounds in words that i will repeat. it cannot be described -- it must understand that it does not just the defendant but his victim who was a flesh and blood person and who has god-given dignity. this was the cause of the wounds.
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ruptured his lower intestines, ruptured his stomach, tore his liver, nearly tore off his left arm at the forearm, snapped a bone in his right leg, fractured and exposed his ribs, and bruised the lungs. the victim had third-degree burns on his back, arms, and left calf. his body was covered in cuts, bruises, and perforations from blades. there were two other deceased victims at the site. the victim i have been talking about was a white male. his name was martin richards. this is his picture shortly before he was torn apart.
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he was eight years old. his father, who had taken him along with his mother and sister to see the boston marathon, had a choque moment in the moments that immediately followed the chaos. he could hold his son in the final moments as the life bled out of him, or he could comfort his seven-year-old daughter who leg screaming in pain and terror, as he tried in vain to retrieve her. the father and mother did not attend martyn's funeral two days later. it is not that they did not want to go. they were still in the hospital still having the shrapnel and nails peeled out of their skin. it is sometimes said we should
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put aside the death penalty and it will sink into obscurity, never to revert again. the perpetrator of the boston marathon bombing did not get the memo. he filed suit against the federal government contesting the conditions of his confinement, including that the guards confiscated his baseball cap and refused to let him send mail to his lawyer. it is also said that we should end the death penalty because it is perhaps more punishing to sit with the shame of what they have
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done. he has had two years to sit with a crime. in his holding cell, he showed the remorse he had come to feel. finally, it is said we should and the death penalty to avoid making the killer a martyr or celebrity. 18 months before he was sentenced, his celebrity status was already more secure than mick jagger's, and this "rolling stone" article made sure we all knew it. it is, in criminal law that the punishment should fit the crime. this is probably the most commonly agreed-upon proposition . it is already commonplace in
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every discussion except the one about the death penalty, that the punishment should reflect the fact of the sentence, but not only is there no set of facts that would warrant keeping capital punishment, but in addressing that question, no set of facts can be considered. the argument to end the death penalty is assisting to. not only is it intentionally oblivious to the facts of the crime, but it is ahistorical. the framers explicitly complicated -- contemplated death as a punishment. in the early days of the republic, it was imposed during wartime. 115 supreme court justices in the nation's history, a total of six, have taken the view that this is cruel and unusual
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punishment. it was not only supported but induced by george washington, abraham lincoln, franklin roosevelt, dwight eisenhower, and, yes, barack obama, whose administration approved capital prosecution. professor steiker told you the death penalty is dying. i respectfully disagree, and i think the facts support a contrary point of view. according to the most recent gallup poll, the death penalty is supported by 55% of the public. a greater share of support then joe biden got in the popular vote and, as a matter of fact, more public support than any president has received in an election since the reagan landslide of 1984.
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it has had that level of support moreover for at least 45 years. although it has been eliminated in a number of states -- i'm now including virginia -- it has never in our nation's history [indiscernible] to the contrary and perhaps the most stunning example of its continuing populist support, california voted in a 2012 referendum to keep the death penalty and then four years later voted by an even bigger margin not only again to keep it but in a second referendum to speeded up. in california, all the arguments were made that professor steiker made, including, for example, that it is to expensive. i think she said half $1 billion
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just for one execution, but i would respectfully submit that the people best positioned to decide if it is worth it are the people who have to pick up the tab. that is the california electorate, and they have voted now twice in recent years in favor of continuing the death penalty. this long-standing -- does this long-standing legal and popular support make it right? it does have some persuasion 40 abolition side to show by strong evidence not only that it is wrong, but that there was no case and will never be a case in which it would be permissible for the jury even to consider. in my view, opposition to the death penalty has not met that
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vote. it has lessons to teach us about the importance of circumspection. our debate today would be very different if it embraced moderation and caution instead of one-size-fits-all "never, never, not ever" remedies of total abolition. if that is the question, our country's answer should remain with president obama's laws -- no. there are arguments in favor for capital punishment, but for me, it is this -- our country, like any other, is hardly perfect, but we have earned the right when faced with gruesome criminality vastly outside the parameters of civilized life,
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behavior like timothy mcveigh's or dylan roof's, the ability to say no and make it stick. [indiscernible] we lack the moral authority to kill even child killers or people who take money to kill. abolition is in paralyzing moral skepticism about the country, but where is its basic fairness and decency? abolitionism is the first cousin of what used to be called great america first. sarna -- it is not tsarnev who
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was responsible for blowing apart an eight-year-old. it is us. we failed to give him a good education. we failed to give him equality. we failed in our caring. we failed in our compassion. i don't think so. his family was welcomed into the united states, and sania -- tsarnaev was welcomed as a college student. moreover, i don't think the college consisted of a bunch of rotary club monsters. i don't think the state was barbaric or backward or indifferent. the jury knew people -- people -- evil and had the wisdom and power to decide on a permanent
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end. but the next jury facing the next tsarnaev should have the same chance. chloe: thank you, professor otis. we are going to turn back to professor steiker for rebuttal. professor steiker: thank you, bill, and thank you, chloe. it does not surprise me -- oh, sorry. i got it. i got it. thank you. now video, audio both on. thank you, bill, and thank you, chloe, for those remarks and for welcoming me back. bill, you may not remember this, but the last time we debated, you started with -- you started your remarks in a similar way, and it is the way that most
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people i debate on the death penalty begin their remarks. they conjure what they take to be a demonstrably evil, horrific, and heinous crime, if it's adolf hitler, saddam hussein, timothy mcveigh, joe carson i of -- dzokar tsarnaev. the last time we debated, you discussed a case about a man who kidnapping his ex-girlfriend's children from another relationship and left them in an alligator patch to be eaten by alligators, and you concluded that argument dramatically much as you concluded your argument about the boston marathon bomber case, with the idea that some crimes are so heinous that only a punishment of death is somehow proportionate to the heinousness of the people demonstrated in those cases, and that is a very
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common debating point. let me tell you my response to that. what makes you think that a single, relatively painless death is a sufficient, proportionate response to the heinousness of these crimes? why shouldn't we, in dealing with someone like tsarnaev, who maimed dozens of people and killed 4 -- why shouldn't we, one by one, blow up each of his limbs and then kill him? why wouldn't that be proportionate to the heinousness he unleashed in the world? maybe some of your thinking, maybe that's a good idea. when i have had these debates before, almost everyone, including people who support the death penalty say no, no, no, we should not low what the bomber's
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limbs. we should not rape rapists. we should not torture torturers, even though that might be what they deserve, but even though they might deserve suffering the way they have had their victims suffer, we should not be the agent of inflicting that kind of suffering on them. why? when i turn the question back, i say why not rape rapists and torture torturers and have alligator guys eaten by alligators. the answer is always something like, "that would be cruel" or barbaric or uncivilized, essentially agreeing with me that there are some things that people might deserve that we should nonetheless not do them. so i think most people agree
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that there is some other moral principle at work, that even though people might deserve to have terrible things done to them, we should nonetheless not do those terrible things, and i ask you, if you with that principle, why is not killing people on the same list as torture and rape and maiming? normally, we think of death as worse than torture, rape, and maiming, which is why we only allow the death penalty for killing. if there's some things people deserve that we don't do, i turn to you why is death not one of them? bill wants to stay -- say there is still a lot of support for the death penalty, and it's true. it depends how you ask the
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question. if you ask one way, you might get 55% support for the death penalty, which i should point out is down from 84% in answer to that question in 1994. 84% down to 55% is a pretty big decline in support for the death penalty just based on the "do you support it" question. but if you change the question, do you support the death penalty or do you support life imprisonment without parole, support for life imprisonment without parole outstrips support for the death penalty by over 50%. it completely depends on how you ask the question, and i think that shows pulling is not a great metric here. instead, let's just ask what people are doing. bill points to california, yet, california did not manage to pass abolition by referendum, but it's popularly elected governor is one of the three in the country who have gubernatorial moratoria in place
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that says that no one will be executed on his watch, so there's california for you. in addition, we have 23 states if you count virginia that have now repealed. we have three more states including california that have gubernatorial moratoria in place, and we have nine further states that are de facto abolition in that they have not executed anyone in a decade or longer and have no plans to do so. that makes 35 states that either have abolished or have to factor abolished the death penalty. the death penalty is only used five a fraction of counties in the state. let me give you the example of texas, our biggest now after virginia and in the modern era, executioner. texas has 254 counties. of those 254 counties, 200 of
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them have not executed anyone in the past 50 years. that gives you a sense of the tremendous movement -- i would describe it as freefall of the death penalty in the united states in the last few decades and around the world. i agree with you. i think as trends continue, you have to pay attention. what is is not necessarily what is right, but it is a big thumb on the scale. if two thirds of the world or two thirds of the united states are du jour or to factor abolitionists, you have to ask why, and i think i have given you some good reasons why. thank you. -- does europe or defective -- de jura or de facto abolitionists, you have to ask
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why. chloe: we are turning back to professor otis for rebuttal. professors otis: am i on? why not torture tsarnaev? there are two reasons. one, it is barbaric in a way the death penalty is not. people understand the eighth amendment does not permit things that are barbaric. the infliction of pain on a defendant no matter how awful his behavior is, we don't do it because it is barbaric. that has been our country's tradition. the second reason we don't do it is it is illegal. the supreme court's exception of the death penalty takes account a country's stark view of this,
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which would depart from people being drawn or quartered and continue to have a death penalty , but not one that involves wanton infliction of pain. those are the reasons we don't torture tsarnaev, no matter what he might deserve. civilized life does include the death penalty so long as it is done in as humane a fashion as we can do, which is what we are doing now. second, did the death penalty die? well, let me just give you the facts. over the last five years, we have in this country 108 executions. that is an average of one execution every 17 days. that is less than what it used to be, that's true, but not something that we can say the
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death penalty has died. support for the death penalty, it's also true what you said that support for the death penalty has fallen considerably from what it was in the mid- 1990's, which was about 80%, 255% today. but 55% is still a majority. most presidential candidates would be happy to have 55%. in addition to that, the supreme court continues to support it. the present day supreme court is more favorable of the death penalty than any supreme court in my lifetime. and let me say this -- while it's true that support for the death penalty has fallen, something else has fallen and just as dramatically. that would be the murder rate.
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from the early 1990's to today, the murder rate has fallen by half from about 10.4 per 100,000 people to now five per 100,000 people. the death penalty is strong medicine. no normal person is enthusiastic about going forth to an execution. we have strong medicine when we have a severe problem. we have so much less murder as it has over the past 25 years or so, then enthusiasm for this very strong medicine is also going to abate. while that is understandable and what you would expect, to say that it has abated is not to say that the country does not believe there are still certain particularly egregious crimes where the death penalty is
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warranted. finally, as for international support, it is also true that a large number of countries have done away with the death penalty, but look at what those countries are and look at what the other countries are. the five largest countries in the world are -- in order -- china, india, the united states, indonesia, and pakistan. all five have the death penalty and enacted the death penalty. in addition, japan has the death penalty, a sophisticated democracy. so we have the death penalty predominant in the united states, in africa, in the middle east, in the subcontinent, and in asia. this being the case, i don't ink we can say the world has turned away from the death penalty exactly the opposite.
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i probably have not answered all your points. i hope it will come up in questioning if i have not. chloe: thank you, professor otis. i'm going to ask professor givens to return to the screen for our q&a. as a reminder to the audience, you can summit questions via the q&a option at the bottom of your screen. professor givens: thank you very much, chloe, and thank you, professor steiker and professor owens. this has been a wonderful and lively debate, and i appreciate you are willing to engage. i'm wondering if you can give us your thoughts on given the current trends of support for any usage of the death penalty in the united states -- what do you think the current court
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eighth amendment involving standards of decency assessment would look like should they take this issue? i'm talking about what it might look like in boats and in substance. professor steiker: well -- no ahead, bill. professors otis: -- go ahead, bill. professors otis: the current court i think would vote 7-two to keep the death penalty. it has shown i think no sign of departure from their previous approval of the death penalty. justice breyer joined justice ginsburg when she was on the court in taking the view in his
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dissent that the death penalty was very likely unconstitutional , so i think he is certainly one vote against the death penalty. justice sotomayor conspicuously did not join justice breyer and ginsberg's dissent, but i cannot remember the case in which she has ever voted in favor of actually going forward with an execution. i think if the question were squarely presented, is the death penalty outlawed by the constitution, the answer would be 7-2, it is allowed. professor steiker: i would just say i agree that this current court would absolutely uphold the death penalty, probably on some version of original-ism, which is one of the more recent decisions by some of the more conservative members of the court. i tend to think the vote would probably more 6-3.
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i think the vote would go along strictly party lines of appointing president, would be my guess, though we don't really know. only justice breyer is on the record, and even he has not exact we said that. he said, "i think the court should consider the issue," and the rest of his answer made it clear what he thinks it should be. i'm touting the book chloe mentioned in her introduction of me, the book i brother and i wrote, was published in 2016, chapter seven talks about how we do think that if and when -- because we do think this will happen, that there will be nationwide abolition in the united states -- i do think that will happen. i think it is now a generation or more away, but i think that if and when that happens, it will be based on the court's eighth amendment jurisprudence,
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based on evolving standards of decency, and the court will use the same eighth amendment reasoning that it used to abolish the death penalty for juvenile offenders or for offenders with mental disabilities, and it will rely on the decreasing use of the death penalty writ large as signs of evolving standards of decency against it, and if this freefall and withering of the american death penalty continues, as i think we should expect to see, a later court will use the exec to -- the existing eighth amendment jurisprudence to abolish the death penalty, but it will have to be a very different court from the court that currently sits. chloe: thank you both. professor givens: we've got a number of audience questions. i will try to get through as many as i can. going off of professor givens' last question, our first
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question is what are your thoughts on the court's increasing use of the shadow docket in capital punishment cases? professor steiker: i'm happy to speak to that. this is something that really came up in the 13 executions that the trump administration pushed through in the last six months or so of trump's presidency, and many lower courts stayed executions in order to consider legal issues that had been raised in them, and the supreme court pretty unceremoniously lifted a bunch of those stays. in one case, actually granting cert before judgment, a very unusual move. before even allowing the fourth circuit to even decide the case, the supreme court reversed the decision and allowed the execution to go forward, and it's very problematic that the
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house judiciary committee has already held hearings about the shadow docket because one of these concerns is that these decisions which are done on the motions docket, not with full briefing, not with oral argument, not with deliberation by the justices together, not with in many cases written opinions, nonetheless have the effect of merits decision, and it is concerning when something as significant as life is on the line and lower federal courts think that there are important issues to be determined, and the supreme court unceremoniously and without reasoned argument or decision clears the way, and i think it shows something, that what bill said is true, which is that this court is the most friendly to the death lt court -- death penalty court, which is my lifetime, which, roughly speaking, is bill's safe -- same lifetime. this court is making a statement
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about the death penalty. professors otis: i think carol's lifetime is considerably shorter than mine. let me say this -- each of the cases in which a defendant was executed administration --
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kept shifting ground for reasons he should not be executed and at the very last minute, which is typical, they come up with other grounds. as was said in the legal argument, it was a guerrilla war being conducted. they are not going to get what they want by putting the tool to abolition's that has ever been accomplished by popular vote of the people. the only way to avoid executions is by the guerrilla war. i think that is all wrong. i thinkcountries supporting that
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practice are not democracies, and what do you think of having an american consideration of our policy? professors otis: i take it that question is directed mostly to me, so i will answer first. the world largest democracy has
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[indiscernible] japan is a democracy. some of the african nations that have the death penalty are. if the truth be known -- for example, there was a poll done in canada, if the people had their way, if it were put to a vote of the people, more countries would have the death penalty than have it now. what was the second part of your question? chloe: it was in regards to how much international practices should have a role in our consideration of having the death penalty. professor otis: none. carol --professor steiker: i disagree with the none part. i think we should to other countries and see if it is as important to have the death penalty as bill suggests. one question bill raises of the
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boston marathon bombing case makes me think of was the case in norway when anders breivik killed more than 45 people, almost all of them children, in 2011. in norway, the maximum punishment you can get for murder is 21 years, which is what he got. norway's murder rate is 1/10 of what the murder rate is in the united states. do we need death penalty to protect us? clearly not. norway's example is one. what is really striking is that anders breivik was clearly very mentally ill, and a big question was if he should be found not guilty by reason of insanity. you know who found that who argued most strongly that he should be found not guilty by reason of insanity? the prosecutors in the case. the judges rejected the insanity defense, but it was the prosecutors arguing for it.
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what we take to be normal and natural in our country does not necessarily have to be, and we can learn a lot from other democracies that managed to have much less expensive, much less encompassing, much less harsh criminal punishment and nonetheless live safer lives. chloe: are your next question is directed to professor otis, but i would love to hear if the other professors have something to add -- our next question. is it your opinion that the capital punishment cannot be handled in an evenhanded and fair way and that it across the board over punishes people of color. professors otis: rather than have me respond to that, justice scalia responded to that in his concurrent opinion, and i was urged recently to look at that.
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our system of justice both for the death penalty and for criminal punishment in general balances two things that any normal person would think would need to be balance. what is there should be rough equality of treatment, which is the reason that congress, for example, adopted sentencing guidelines. because there had been widely disparately treatment of similarly situated defenders, so that should be fixed or at least more equitable treatment provided. but as the supreme court has said and i think normal people would agree, the individual characteristics of the offense and offender also need to be considered. these two considerations run all through our criminal jurisprudence. not just the death penalty, which is a very tiny percentage
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of cases that get litigated, through the 99% that get -- a very tiny percentage of cases that get litigated, versus the other 99%. the racial imbalance on the death penalty as a result of the racial imbalance in violent crimes and drug crimes. the population to look at is not the general population but the population of those who commit crimes. you would also find a gross imbalance in the number of people on death row who are male versus female. why is that? because the country has it in for males? no, it is because males far more frequently than females commit the crime of gross violence --
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gross, violent, sadistic murders that will get you the death penalty. that is the reason there is a sex imbalance. we have an imbalance in age. the number of people convicted and sentenced to death in their 20's and 30's grossly exceeds the number of people in their 60's and 70's. why? because america has it in for youth? no, it is because the number of people who commit that kind of crime have a distinct demographic difference from the number of people who don't commit that kind of crime, and that is the reason we have demographic imbalances not only in the death penalty, but in every other component of criminal justice system. it has to do not with identity, but with behavior. professor steiker: i'm afraid that ignores all of the social science research that ever has been done. 96% of studies have held constant for the seriousness of
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the defense criminal records and 230 other variables that might explain the disparities other than race. i will end with quoting justice scalia -- i think he is the guy to quote here. he wrote a memo to the rest of the justices in mccleskey that became public as part of justice blackmun's papers where he wrote originally -- the panel was thinking right it,. i think we will have bias in our system and there is nothing we can do about it, so we just need more proof. he was willing to say we have discrimination that exists, and we will have to live with it. that was justice scalia's last
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words. it's not we don't have to screw nation. we do have discrimination. -- it's not like we don't have discrimination. we do have discrimination. >> discrimination based on behavior -- >> that is not discrimination. >> we have different portions. we have a different instance of the death penalty, but that does not have to do with the identity. it has to do with the characteristic behavior, which is very different for men and women and for young people than older people. that is what justice scalia was saying. that is part of life. >> that is not what he said, though. he said there will be biases based on race, but there is nothing we can do about it. he was not talking about those differences. it is in our book.
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you can read the memo he sent word for word. that is just not what he was saying. >> i am so sorry to cut you off, but it is 6:00 p.m. and we have a hard cut off. i'm sorry to the audience whose questions we did not get to. we had over 40 questions. thank you for your engagement. thank you for attending. thank you you professors for joining us. i hope you guys have a great rest of your evening, and if you miss any part of this recording, it will be on the youtube page later this evening. thanks for have a good eveni ♪ >> c-span's washington journal. every day we take your calls live on air every day and policy issues that impact you. coming up this morning, american
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community project director and cofounder. and a look at the future of the republican party. watch c-span's washington journal live at 7:00 eastern this morning and be sure to join the discussion. your phone calls, facebook comments, text, and tweets. >> the trial of derek chauvin, charged in the death of george floyd. watch today beginning at 3:00 eastern on c-span. here from charles mcmillan, who spoke with george floyd during his arrest and courteney ross, george floyd's girlfriend. the trial, today beginning at 3 p.m. eastern on c-span. >> middleton high school students participated in c-span's studentcam competition about issues that congress and president should address this year. all month, we arat

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