Skip to main content

tv   UVA Federalist Society Death Penalty Debate  CSPAN  April 6, 2021 4:38pm-5:43pm EDT

4:38 pm
employ you to take steps to prioritize this. if we don't take a stand on tobacco now, we may have a bigger epidemic in the future. >> winning entries are billable online at >> up next, the university of virginia federalist society is the host of the debate of the death penalty with a full federal policy -- a former federal prosecutor. this is about an hour. >> welcome to our debate on the death penalty. i am the vice president for speakers federalist society chapter. it is a group of conservative libertarians. separation of government powers
4:39 pm
is central to our constitution and that is the province and duty of the judiciary to say with the law is, not what the law should be. we are honored to be joined by these professors. carol is a professor in the faculty codirector of the criminal justice policy program at harvard law school. her work ranges from substantive criminal law and procedure to institutional divide with a focus on capital punishment. her most recent book was co-authored with her brother at the university of texas school of law and published in 2016. she is a graduate of harvard law where she served as president of the law review. in addition to her scholarly work, she has served on pro bono litigation products including death penalty cases in the supreme court. an adjunct professor at
4:40 pm
georgetown university law school. chief of the appellate division at the u.s. attorney's office for the district attorney virginia. 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 pieces on criminal law for usa, forbes, the washington post and u.s. news & world report. he has appeared on many major networks and has testified before congress. his expertise centers on criminal procedure sentencing and capital punishment. jennifer givens is an associate professor of law at the university of virginia and the director of the innocence project clinic. she previously worked with an assistant federal defender for the eastern district of pennsylvania. as a senior staff attorney with the virginia capital representation center where she
4:41 pm
represented inmates on death row. she has argued before trial courts in pennsylvania and virginia. she is a graduate of the university college of law. she will join us after the debate for audience q&a. just so you know during debate, you can summit your questions through the q&a feature at the bottom of your screen or you can use the raise hand function. until the q&a debate begins, we are going to turn to the debate portion. professor, you will go first. i will turn it over to you. >> thank you very much. both for that generous introduction and organizing this event. i extend those thanks to the university of virginia fed talk chapter and also to professor gibbons for moderating this event. the death penalty is dying around the world and in the united states.
4:42 pm
consider the world. in the 1960's, only two dozen countries in the world had abolished the death penalty. today, 50 years later, more than half of the approximately 200 countries in the world have fully abolished the death penalty for all crimes in more than two thirds of the countries in the world have abolished in either law or 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 taking place very much in the united states as well. part of the reason is the countries that maintain the death penalty in the world are not countries we think of as our peer countries, deleting executing nations are china, iraq, iran, pakistan. not the kind of countries the end states is normally --
4:43 pm
but also because any of the concerns i'm about to talk about with regard to the death penalty have informed state, local practice in the united states. consider two tremendous milestones the death penalty has reached or in the abolition of the death penalty has reached in the united states and of the last few months. president biden is the first president ever elected on an anti-death penalty platform. virginia where i am sort of speaking right now is the first southern state ever to repeal the death penalty, just waiting for the governor's signature, which has already been promised and it will become the 23rd state to abolish the death penalty. virginia is the state that has executed the most people in american history. those are two big milestones. they only represent the most recent phenomenon in the death penalties dramatic decline in
4:44 pm
the united states and the world. for example, in the modern era of capital punishment, the time since the 1970's when the death penalty was temporarily abolished and 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. executions reached their modern high in 1996 -- sentencing reached its high in 1996 when 315 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
4:45 pm
more than 80% in executions and more than 90% in capital sentencing. this is tremendous freefall in the past 20 years in the death penalty in the united states. i'm here to argue to you this is a good thing. i could argue but i'm not going to the primary moral acceptability or not of the death penalty. i am not going to argue on these grounds because i have found these arguments do not tend to change people's mind. 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 taken as an article of faith. sometimes literally. some people are against the death penalty like many catholics because the pope has spoken against it or some people think that judeo-christian
4:46 pm
values support the death penalty. some people have political views the death penalty is a matter of international human rights as all or most of europe does whereas others feel the demands of retributive is him require we punish people with death. these kinds of arguments are interesting and i have my own views, which i'm happy to share any the q&a but i'm going to 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 priors support, even enthusiastically, the death penalty, you have good reason to oppose it. let me give you some of those reasons and let me give you an example, a counter to my opponent in this debate.
4:47 pm
another formal federal prosecutor, famously a novelist as well as a federal prosecutor who was very much in favor of the death penalty in his time as a federal prosecutor 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 appointed 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.
4:48 pm
he is one example, and a broader institutional example -- this is for you, law students out there -- 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 ali voted to withdraw its support for. this model statute formed the template for the modern american death penalty in play today, but the ali 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
4:49 pm
today? i'm going to give you five. number one is that capital punishment does not and cannot serve any permissible, plausible 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 are 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 discriminatorily 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
4:50 pm
that executions can in some cases do some good, number two, 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
4:51 pm
and the cost of maintaining death row and execution apparatus, and you divide that figure over the past 40, 50 years, by the 13th execution that has been done, you get the -- wait for it -- whopping number of a half $1 billion. you heard that right. $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
4:52 pm
ridiculously high cost exists in every death penalty state. now i'm talking to you, 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
4:53 pm
pressure on police and prosecutors to produce quickly charges and convictions that lead them to cut corners and rely on things like unreliable 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 8.3 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
4:54 pm
penalty system, a study shows that 96% of all studies done by states and private individuals of rates of the death penalty shown either race of the victim 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 a colorado's population is 9%. the percentage of black people on death row is 100%. that is why that was such a big issue in colorado and is an issue in virginia with regard to abolition. 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.
4:55 pm
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
4:56 pm
examine a recent experience in another state, massachusetts, that abolished it in 1984. about 30 years later with no death penalty on its books, the state nonetheless found itself facing a capital murder trial. one of the victims suffered extensive injuries before he died. the coroner described his wounds in words that i will repeat. the discussion of the kind we are having today cannot be conducted in the law or the requirements of pragmatism or the suggestions of economics might make. it must understand that it is not just the defendant but his victim who was a flesh and blood person and who has god-given
4:57 pm
dignity and humanity. this was the cause of the wounds. severed and exposed is 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 blast debris. there were two other deceased victims at the site. both women. the victim i have been talking about was a white male. his name was martin richards. this is his picture shortly
4:58 pm
before he was blown apart. he weighed 69 pounds. he was eight years old. his father, who had taken him and his mother and his sister to see the boston marathon. 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 laid screaming in pain and terror, as he tried in vain to retrieve her left leg. the father and mother did not attend his funeral two days later. it is not that they did not want to go. they were still in the hospital
4:59 pm
still having the shrapnel and nails dug out of their skin. it is sometimes said we should put aside the death penalty and the killer will sink into obscurity, never to be heard from again. the boston marathon bomber did not get the memo. last week although his death sentence had been vacated and set for retrial by the first circuit, he filed a 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 as he comes to appreciate the gravity of what
5:00 pm
he has done. he has had two years to sit with the crime by the time his trial was held. in his holding cell, he showed the remorse he had come to feel. finally, it is said we should end 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 is commonplace in criminal law that the punishment should
5:01 pm
fit the crime. this is probably the most commonly agreed-upon proposition. it is already commonplace in every discussion except the one about the death penalty, that the punishment should reflect the facts of the offense. not only that there is no set of facts that would warrant keep it open -- keeping capital punishment but in addressing that question, no set of facts can be considered. the argument to end the death penalty is distinctive not only and it's attentional -- it's intentional obliviousness to the facts of the crime but it is a historical. the framers especially contemplated death as a punishment. in the early days of the republic, it was imposed for more crimes than it is today.
5:02 pm
of hundred 15 supreme court justices in the nation's history, a total of six have taken the view that this is cruel and unusual punishment could it was not only supported but used by george washington, abraham lincoln, franklin roosevelt, dwight eisenhower, bill clinton, and yes, barack obama, whose administration approved capital prosecution. professor steiker told you the death penalty is dying. that support for it is on the run. 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 than joe biden got in the popular vote and, as a matter of fact,
5:03 pm
more public support than any president has received in an election since the reagan landslide of 1984. it has had that level of support moreover for at least the last 40 years. although it has been eliminated in a number of states and now including virginia, and has never in our nations 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 speed it up. in california, all the arguments were made that professor steiker
5:04 pm
made, including, for example, that it is too expensive. i think she said half $1 billion just for one execution, but i would respectfully submit that the people best positioned to decide whether 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 legal and popular consensus in favor of capital punishment, does that make it right? it does shift the burden of persuasion to the 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
5:05 pm
permissible for the jury even to consider. in my view, opposition to the death penalty has not met that vote. it has lessons to teach us about the importance of dignity and circumspection. our debate today would be very different if it urged 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 different views about the most compelling argument in favor of capitalist -- capital punishment paid for make, it is this. our country like any other, is , hardly perfect, but we have earned the right when faced with
5:06 pm
gruesome criminality vastly outside the parameters of civilized life, behavior like timothy mcveigh's or dylan roof's the right to say no and make it stick. [indiscernible] we lack the moral authority to execute even trout killers or people who take money to kill. or people who kill witnesses and judges. abolitionism is 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
5:07 pm
america first. in this recounting, it is not tsarnev who was responsible for blowing apart an eight-year-old. it is us. we failed to welcome his immigrant family. we failed to give him a good education. we failed to treat him with equality. we failed in our caring. we failed in our compassion. i don't think so. not merely that it is all his fault. his family was welcomed into the united states and he was a college student. i don't think the jury that gave him a death sentence consisted of a bunch of privileged rotary club monsters. i don't think the state was barbaric or backward or morally indifferent. the jury knew people when it
5:08 pm
sought -- knew people when it sought and had the power to decide on a permanent end. the next jury facing the next tsarnaev should have the same chance. chloe: thank you, professor otis. we are going to turn it 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,
5:09 pm
but the last time we debated, you started your remarks in a very similar way and it is the way that most 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 kidnapped his ex-girlfriend's children from another relationship and stay them out in an alligator patch to be eaten by alligators, and you concluded that argument dramatically much in the way you concluded your argument about the boston marathon bombing case with the idea that some crimes are so heinous that only a punishment of death is somehow
5:10 pm
proportionate to the heinousness of the people -- the evil demonstrated in those cases, and that is a very 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?
5:11 pm
maybe some of you are 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 blow up the bomber's 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
5:12 pm
people might be said to deserve that we should nonetheless not due to them. so i think most people agree 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. i ask you if you agree with that principle that we should not blow up the limbs of the boston marathon bomber, 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 some things deserved we should not do, i turn it to you, why is death not one of them? now, bill wants to say there is
5:13 pm
still a lot of support for the death penalty, and it's true. it depends how you ask the 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 polling is not a great metric here. instead, let's just ask what people are doing. bill points to california, yet,
5:14 pm
california did not manage to pass abolition by referendum, but it's popularly -- but its popularly elected governor is one of the three in the country who have gubernatorial moratoria in place 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 is an overwhelming majority of states. even states that maintain the death penalty the death penalty , is used only by a fraction of counties in the state. let me give you the example of
5:15 pm
texas, our biggest now after virginia and in the modern era, our biggest executioner. texas has 254 counties. of those 254 counties, 200 of 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. bill 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. with two thirds of the world and two thirds of the states in the united states you have to ask , why, and i think i have given you some good reasons why. thank you.
5:16 pm
chloe: we are going to turn back to professor otis for rebuttal. professors otis: am i on? chloe: yes, we can see you. professor otis: why not torture tsarnaev? there are two reasons we should not do that. one, it is barbaric in a way the death penalty is not. which is the entire reason behind the supreme court's continuing support. the supreme court understands the eighth amendment does not permit us to do things better 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. as i was saying, the supreme
5:17 pm
court's discussion takes account of our country's historic view of this, 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, is the death penalty dying? well, let me just give you the facts. over the last five years, we have had in this country 108
5:18 pm
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 death penalty is dying. support for the death penalty. it is 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%, to 55% 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.
5:19 pm
while it is true support for the death penalty is falling, something else is falling. and just as dramatically. that would be the murder rate. 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 to -- we have strong medicine when we have a severe problem. when the problem abates as we have had so much less murder over the past 25 years or so. 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
5:20 pm
that the country does not believe there are still certain particularly egregious crimes where the death penalty is 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 of them 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
5:21 pm
in asia. this being the case, i don't know we can say the world has turned away from the death penalty. exactly the opposite. 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 consummate your questions through the q&a function at the bottom of your screen. i will turn it over to the professor. 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
5:22 pm
your thoughts on given the current terms of support for and usage of the death penalty in the united states -- what do you think the current court 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 votes and in substance. professor otis: the current court i think would put 7-2 to keep the death penalty. it has shown i think no sign of departure from their previous approval of the death penalty. justice kagan said in her confirmation hearing in response to a question she would favor
5:23 pm
the constitutional -- justice breyer joined justice ginsburg when she was on the court in taking the view in his 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,
5:24 pm
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 be more 6-3. 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 exactly said. he said, "i think the court should consider the issue," and the rest of his answer made it clear what he thinks the answer to that consideration should be. i do want to say and i am telling the book chloe mentioned in her introduction of me, the book my brother and i wrote that 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
5:25 pm
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, 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 existence -- the existing eighth amendment jurisprudence to abolish the death penalty, but it will have to be a very different court from the court that is currently sitting. chloe: thank you both. professor givens: we've got a number of audience questions.
5:26 pm
i will try to get through as many as i can. going off of professor givens' last question, our first 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 allowing the to even fourth circuit decide the case
5:27 pm
the supreme court reversed the decision and allowed the execution to go forward, and it's very problematic that the house judiciary committee has already held hearings about the shadow docket because one of the 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 and 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 penalty
5:28 pm
court in my lifetime, which is roughly speaking, bill's same lifetime. 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 toward the end of the trump administration -- those cases had been mitigated for years and years. there had been one after -- when opportunity after the next first day in federal judges to check off on those cases. it was not a sudden rush. when litigation has gone on for years, it is disrespect for the language to say anything happens suddenly.
5:29 pm
it was anything but sudden. for probably the best reason explanation, the fancy dance that goes on, especially the last minute fancy dance when the execution comes into view, take a look at justice gorsuch's opinion for the court. for reasons he should not have been executed and at the very last minute, which is typical, came up with another. as justice alito once said, and was a guerrilla war being conducted. those who are opposed to the death penalty know they are not going to get what they want by putting it to a popular vote
5:30 pm
since abolition has never 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 think we should debate it openly, like we are doing today, and decide on the
5:31 pm
american tradition that is approved by the supreme court and approved by the majority of the people. >> next question is regarding the international scope that the professor. the first question is what do you make of the fact that the country are mostly not democracies and what role do other international practices have american consideration of our policy regarding the death penalty? >> and african nations. and truth be known. and there is if the people have
5:32 pm
their way. and countries would have to get its now. what was the other question? >> international practices should have a role in our consideration of whether or not to have the death penalty? >> none. >> i degree with the none part. we can look to other countries if it is important to have the death penalty as bill suggests. >> norway's murder rate is 1/10 of the murder rate. do we need the death penalty to protect us? clearly not.
5:33 pm
>> the prosecutors were arguing. other nations what we take to be normal and natural and doesn't have to be and we can learn from other democracies
5:34 pm
>> and criminal judgment in general. any normal person there should be equality of treatment in the broad sense. adopting sentencing guidelines because there has been diss par ate treatment and at least provide some more equitable treatment in sentencing guidelines. the supreme court has said the individual characteristics of the offense also need to be considered.
5:35 pm
as i say, we need to consider whether all three of moral jurisprudence and very untimely of the cases that get litigated. every single day in every courtroom in america judges involve those two things. [indiscernible] >> the racial imbalance. and drug crimes. it's not a comparison with the general population but the population -- justice scalia
5:36 pm
5:37 pm
wrote a memo that became of the papers where he wrote that powell was thinking of writing the opinion in mcclosey and scalia said we should not write it that way because i'm convinced. i don't need more proof. i thinkr system and there is nothing we can do about it, so we just need
5:38 pm
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 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
5:39 pm
based on race, but there is nothing we can do about it. he was not talking about those differences. it is in our book. 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
5:40 pm
5:41 pm
>> research into police misconduct. watch "washington journal" live at 7:00 eastern wednesday morning and join the discussion with phone calls and text messages and tweets. >> military law enforcement and counterterrorism experts discuss the threat of desk exrimpleeism. and lieutenant russell honore that reviewed security at the capitol. this runs an hour. >> i'm the director of the judicial friends of research lab
5:42 pm
here at the atlantic council. i will be talking about our conversation entitled after the insurrection countering domestic terrorism. it is hosted by the atlantic council and georgetown law institute for constitutional advocacy and this is the third focusing on disinformation and domestic violence extremism. we are joined today by four experts and panelists who will be introduced by my colleague. each of our guests will share their unique on extremist ideologies within the law enforcement agencies. the january 6 assault on congress was the


info Stream Only

Uploaded by TV Archive on