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Revisiting the Death Penalty Debate
Back in August of 2014, Lawyer 2 Lawyer hosted a show on the death penalty where we explored whether the death penalty was considered cruel and unusual with standout guests Judge Alex Kozinski from the United States Court of Appeals for The Ninth Circuit, exonerated death row survivor Ronald Keine from Witness to Innocence, and M*A*S*H actor Mike Farrell from Death Penalty Focus. That episode focused on the merits of firing squads vs. lethal injections and corruption in the judicial system. Presently, the death penalty is the law in in 31 states and the debate continues.
Today on Lawyer 2 Lawyer, we revisit the death penalty debate. Host, J. Craig Williams joins attorney Robert Dunham, executive director of the Death Penalty Information Center and Judge Alex Kozinski, who sits on the bench of the United States Court of Appeals for The Ninth Circuit. Robert and Judge Kozinski take a look at the death penalty debate within our society and in our courts, exploring forensics, the fate of the death penalty, and whether we will see the constitutionality of death penalty argued before the Supreme Court.
Attorney Robert Dunham became the executive director of the Death Penalty Information Center in March of 2015. Mr. Dunham has more than two decades of experience as a capital litigator and teacher of death penalty law. He holds a B.A. in Philosophy from the University of Pennsylvania and is a graduate of the Georgetown University Law Center.
Judge Alex Kozinski sits on the bench of the United States Court of Appeals for The Ninth Circuit, where he has served since his appointment on November 7th, 1985, by President Ronald Reagan. Prior to that appointment, Judge Kozinski occupied other prestigious positions, including Chief Judge of the U.S. Claims Court and Office of Counsel to the President.
Special thanks to our sponsor, Clio.View transcript
Advertiser: There are scores of hundreds, maybe thousands of people, including today, who are there wrongfully because of bad evidence. And I think their focus on death cases or capital cases as somehow unique has been misguided.
I would disagree with Judge Kozinski that there is less of a problem within the sense of capital cases. But I do agree with the judge that it is a significant problem across the board.
Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
J. Craig Williams: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Craig Williams coming to you from Southern California. I write a legal blog called May It Please the Court. My co host, Bob Ambrogi is away on business today. Before we introduce today’s topic, we’d like to thank our sponsor, Clio an online practice management software program for lawyers at www.GoClio.com. Back in August of 2014, Lawyer 2 Lawyer hosted a show on the death penalty where we explored whether the death penalty was considered cruel and unusual punishment with some standout guests. Judge Alex Kozinski from the United States Court of Appeals for the Ninth Circuit and exonerated death row survivor Ronald Klein from witness to innocence, and M*A*S*H actor, Mike Farrell from Death Penalty Focus. Presently, the death penalty is the law in 31 states and the debate about its constitutionality continues to this day. Today on Lawyer 2 Lawyer, we’ll revisit the death penalty. We’re going to take a look at the death penalty debate within our society, politics, and in our courts, as well as explore the fate of the death penalty itself and whether we will see the death penalty before the Supreme Court. Our first guest today is Attorney Robert Dunham became the executive director of the Death Penalty Information Center, a national nonprofit organization in Washington DC that provides information and analysis on issues relating to capital punishment. Before joining DPIC in March of 2015, Mr. Dunham was one of the leading capital appeal lawyers in Pennsylvania arguing death penalty cases in all of the state and federal courts of the Commonwealth of Pennsylvania and the United States Supreme Court. He’s taught death penalty law at Villanova law school for 11 years and has lectured extensively in death penalty training programs across the country for more than two decades Welcome to Lawyer 2 Lawyer, Robert.
Robert Dunham: Thank you for having me.
J. Craig Williams: Next I’d like to welcome our returning guest, Judge Alex Kozinski. Judge Alex Kozinski sits on the bench of the The Ninth Circuit Court of Appeals for the Ninth Circuit, where he has served since his appointment on November 7th, 1985, by President Ronald Reagan. Prior to that appointment, Judge Kozinski occupied other prestigious positions, including Chief Judge of the U.S. Claims Court and Office of Counsel to the President. Welcome back to Lawyer 2 Lawyer, Judge Kozinski.
Judge Alex Kozinski: Good to be here.
J. Craig Williams: Capital punishment in the United States has slowed down. The number of executions and new death sentences has likely to hit low and has not been seen in 20 years. Robert, what’s your sense of the acceptability of the death penalty in the United States and people on death row and the number of people being convicted. Is it on the decline?
Robert Dunham: I think it’s unquestionably on the decline. If you take a look at the national figures, in the late 1990’s, 315 people were sent to death row and this year we’re looking at a number that’s going to be somewhere around 50. When you look at executions, the high was 98 in 1999. This year there are going to be 27 or 28. So there’s a very significant reduction in both the executions and the number of people who are being sent to death row. I think that’s also accompanied by a drop in public support for the death penalty. The public opinion polls, if you take a look at the Gallup polls and the Pew polls, that showed support for the death penalty at about 80% in the late 1980’s, early 1990’s. The Gallup poll this year placed support for the death penalty at 61%. The Pew poll placed it at 56%. And when you ask the follow up question, not just, “Do you support the death penalty in the abstract,” but the follow up question, “What do you think the appropriate punishment for murder is?” And you offer options of the death penalty or life without possibility of parole. A majority of Americans now say that they would prefer the life sentence to the death option.
J. Craig Williams: Well, Judge Kozinski, in the past and I think even on our last show, you mentioned the option of a firing squad for those who object to the cruel and unusual punishment aspect of the application of drugs. What are your thoughts today?
Judge Alex Kozinski: Well, the decline in the number of executions has been to a larger function of the fact that many states mainly use lethal injection to perform executions and those have actually become much more difficult to obtain. This is a result of a conservative effort on the part of anti-death penalty forces to deny states the drugs for executions. So it’s been harder and more difficult to get. There’s been a lot of litigations surrounding alternative use of drugs and that has slowly dwindled down significantly. The problem could just be some of all together if states are foolishly clinging to the idea of using drugs for executions. Use some other method like a firing squad and those problems would be eliminated. And my guess is both cost and delay and frequency of the death penalty would go back up. Now whether it would go back up to high levels, I don’t know, but it would definitely go back up from current levels.
J. Craig Williams: Robert?
Robert Dunham: I think that there is some truth to the level of executions being down because of difficulties in obtaining lethal injection drugs and difficulties in the manner in which states have been carrying out executions. But to me, that’s not the key number because the unavailability of lethal injection drugs as a result of the boycott of the death penalty by the pharmaceutical companies and the European sanctions where Europe does not allow the drugs to be exported to the United States for use in executions. That doesn’t account for juries not imposing death sentences. And we were already at a 40 year low in the death sentences imposed last year. We stand to be 20-35% below that number this year, and that’s got nothing to do with the availability of drugs. It’s clear that there is a decline in the United States in popular support for the death penalty. And that’s a product of the growing public awareness about the problems with innocence. There have now been 156 people who have been exonerated from death row after being sent there. Ongoing problems with junk science, bad evidence, disturbing amounts of prosecutorial misconduct that have contributed to wrongful convictions. And ongoing evidence of very deficient representation, states’ unwillingness to provide meaningful representation, and that’s been resulting in a lot of death penalty cases being reversed. In fact, at this stage, after having more than 8,500 death sentences imposed in the United States, the most likely outcome once someone is been sentenced to death is not that they’ll be executed, but that either their conviction or death sentence is going to be reversed. And so I think that we’ve seen across the political spectrum more and more people saying this is a policy that doesn’t work. This is a policy that risks innocent life and it’s policy that is getting less and less public support.
J. Craig Williams: Just earlier this month, a three-judge panel in the Ninth Circuit overturned district court Judge Cormac J. Carney’s ruling from last year on technical grounds – mostly procedural, if I can say that correctly – in Jones v. Davis. Although it had the effect of saving, essentially, the death sentences of hundreds of prisoners in the states. Robert, there is – I would say arguably – a trend the other way. Not a trend, perhaps, but at least a significant decision in the way of the progress that appears to be made as you were pointing out.
Robert Dunham: Well, the Jones case was decided on procedural grounds. The habeas corpus statute limits the ability of federal courts to review constitutional errors. I know Judge Kozinski has, in other contexts, talked about some of the problems that the statute creates for federal judges. People in the public generally think that federal judges are able to review constitutional issues and capital cases and other cases and say yes or no, if there’s a constitutional violation or not. In fact, that’s not the case. And one of the technical procedural rules in habeas corpus was invoked in this case to make it so that the Ninth Circuit could not even reach the question of whether California’s death penalty scheme was unconstitutional. The panel held that the rule of law that the petitioner, Mr. Jones, wanted applied would have been a new rule of law. The old rule of law from Furman v. Georgia, that the death penalty can not be constitutional if it is imposed in a manner that is arbitrary and capricious, that did not clearly govern this case. Because Jones’ allegations were not that he was unconstitutionally sentenced to death, but after having been sentenced to death, California’s mannering of carrying it out was arbitrary and capricious. So given that that was considered a new rule of law by the panel, they did not even address the constitutional issue. We’re going to see in additional cases – in fact I think you’ll see it in every California case from this point forward – the same constitutional violation alleged that Judge Carney found to be present in this case. What the Ninth Circuit ruled was that habeas corpus relief was not available to Mr. Jones because he was seeking to apply a new rule. They did not rule that the death penalty in California is constitutional. That’s an issue out there that’s still to be determined.
Judge Alex Kozinski: Of course, that issue’s been decided 20 years ago just as Stevens was pushing that issue hard and it went nowhere at all. That’s the position first taken by the privy council in interviewing death penalties from Jamaica that is you just let somebody sit on death row too long, it’s called unusual punishment. That argument went nowhere in the Supreme Court and I doubt it will go anywhere if and when it ever is presented. But it’s probably something of the death penalty, but it’s not unrelated to this whole power of carrying out executions. Part of the calculus that juries are making is the fact that they never see any executions actually carried out. So they go through this trauma of trying to go through the case and then they realize that they’re really just wasting their time. So I am not at all convinced that the face of execution is picked up again. Juries wouldn’t go back to being as willing to impose death penalties before. You notice that even in the heart of what one would consider to be the most anti death penalty area in the country, and that’s in Massachusetts, the state itself has no death penalty. The jury managed to sentence the marathon bomber to death.
J. Craig Williams: There’s also been some significant developments in technology that affects other areas of death penalty convictions and I think probably the foremost among them is forensics and DNA. Robert, do you see that those types of developments and technology have had a significant impact on overturning death penalties?
Robert Dunham: DNA has certainly had an impact in terms of death penalty cases. The impact goes far beyond the ability of DNA itself to exonerate individuals. We’ve had 156 people who have been exonerated from death row. Around 10% of them have been exonerated with DNA. But DNA is unavailable in most cases. And if you’re talking about a case involve a shooting, for example, there is no DNA to be found. What the DNA shows us, though, is that there’s significant problems in other aspects of the case. Because DNA can establish that a person did not commit the offense. But that means that all the evidence that the state used in obtaining the conviction was either false or misleading. So the eyewitness testimony was wrong. The testimony from informants was wrong. If there is a confession as there have been in 20% of the cases involving death row exonerations, that confession was either false or fabricated where you have eye witnesses. We say in case after case with exonerations that there are witnesses who testify truthfully, but inaccurately. So the public has seen that the DNA has unequivocally established that innocent people have been sentenced to death, but it’s also undermined confidence in the rest of the evidence. And one of the disturbing patterns that we’ve seen in the exonerations is that there has been a significant amount of prosecutorial misconduct of the exonerations from 2012 to the present. And we’re talking about 14 exonerations in that period. 12 of those have been cases that have had significant evidence of police prosecutorial misconduct. We may be able to make evidentiary rules better and correct some of the errors with questionable pseudo scientifical evidence. We may be able to get better eyewitness identification procedures. But the fact of the matter is that better evidence and good procedures is never going to overcome bad faith. And as long as you have prosecutions that are proceeding in bad faith with prosecutors hiding evidence or police manipulating evidence, then you can never guarantee that people are not going to be wrongfully convicted or wrongfully sentenced to death.
J. Craig Williams: Before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsor. We’ll be right back.
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J. Craig Williams: Welcome back to Lawyer 2 Lawyer, I’m Craig Williams. With us today is attorney Rob Dunham, executive director of the Death Penalty Information Center and Judge Alex Kozinski from the United States Court of Appeals for the Ninth Circuit. Before we broke for the commercial, we were talking about DNA evidence and forensic evidence and prosecutorial misconduct. Judge Kozinski, what developments have you seen in that area in terms of the effect of those issues on death penalty cases?
Judge Alex Kozinski: There certainly have been developments in all those areas. There’s certainly plenty of cases out there involving discredited forensic evidence. There are plenty of cases involving problems with eye witnesses. There are plenty of cases involving prosecutorial misconduct. But there’s nothing unique about death cases. Those cases run across the entire broad spectrum of our criminal and social justice system; I think those are issues we need to address. To some extent, they actually affect death cases less because very often there are many more resources available if somebody’s charged with capital crime. They get more lawyers, they get more investigators and so on, so some of those problems can be overcome. The people I worry about are the people who get multiple life sentences or life without parole. Nobody cares about them. They linger and they may in fact be innocent, and they are caged for the rest of their life like animals based on junk science. I remember the case a couple of years ago of a grandmother, a case where she was convicted of killing her grandchild based on poor evidence of shaking babies and is evidence that has now been discredited. She didn’t get the death penalty. She was in prison, and we vacated her because we saw the science had been repudiated in the Supreme Court, 5-4, reversed be summarily. Eventually, she got free because governor Brown granted her a clemency. But I think that happened because it was such a high visibility case. There are scores, perhaps hundreds, or maybe thousands of people in prison today who are there wrongfully because of bad evidence. And I think the focus on death cases, on capital cases as unique is misguided. I think the problem is for broader.
Robert Dunham: I think the problem is very broad and the system as a whole does have difficulty dealing with innocence issues whether they’re capital cases or not capital cases. But the evidence suggests – I think contrary to what Judge Kozinski is saying – is that innocence is actually more of a problem in capital cases. You may get closer review of the case during the appellate process, but there are all sorts of incentives for prosecutors in capital cases to shave the rules. And not necessarily that they want to do that, but in high profile cases, in cases where there’s public pressure to solve them, there is a tendency among investigators and in prosecutors to focus on an individual suspect and then have tunnel vision. And that tunnel vision has led in numerous cases to excluding investigation of alternate suspects who turn out to be the people who are guilty. Or it’s led when there are holes in the evidence to try to plug those holes using informants. One of the interesting pieces of data that I’ve seen is that according to the Innocence Project, among the exonerations as a whole in the United States, you see the use of informants who have given false testimony in about 15% of those cases. And the estimate is that it’s almost three times that amount in capital cases. And that’s because capital cases are cases that the prosecutors have great incentive to close and get a suspect convicted. And they are cases that are more valuable to informants because they can get a better deal due to the high profile nature of the cases. So I would disagree with Judge Kozinski that there’s less of a problem with innocence in capital cases. But I do agree with the judge that it’s a significant problem across the board.
J. Craig Williams: How many non death penalty cases does the DPIC handle?
Robert Dunham: We don’t handle cases.
J. Craig Williams: Do you have any idea within groups like Innocence Project and other death penalty advocates? Whether they’re taking non death penalty cases or whether they’re restricting those practices to just death penalty cases?
Judge Alex Kozinski: Oh certainly. They clearly handle both.
Robert Dunham: And in the Innocence Project, there’s a network of Innocence Projects now across the country. Some of them are limited to cases that involve DNA, others go beyond DNA. Typically, the Innocence Projects handle non capital as well as capital cases. And we’re looking at hundreds of exonerations. The National Registry of Exonerations is now keeping track, and I believe that they are in the thousands at this point for Americans who have been exonerated.
J. Craig Williams: Judge Kozinski, do you see the Supreme Court picking up death penalty cases in the immediate future?
Judge Alex Kozinski: Well, it depends on the issue, doesn’t it?
J. Craig Williams: Well, constitutionality, for example.
Judge Alex Kozinski: Oh, will they reconsider the constitutionality of the death penalty as such?
J. Craig Williams: Yes
Judge Alex Kozinski: No, I don’t think so. Not in the foreseeable future. I mean they’ve taken up questions whether a juvenile can be executed, whether the mentally retarded can be executed. They’ve got issues involving particular kinds of drug cocktails and how executions are carried out. But those are also the basic questions of whether or not the death penalty can be constitutional. I don’t see that being taken over to the Supreme Court in the next 20 years.
J. Craig Williams: Robert, what do you think would have to go in to fall into place for that to happen?
Robert Dunham: I think it’s likely that the Supreme Court will consider the constitutionality of the death penalty and they’re likely to do so – I think it won’t take nearly a generation for that to happen. We’ve had a call from Justice Breyer in his dissent in Glossip v. Gross, the lethal injection case, in which his dissenting opinion asks essentially lawyers who are handling capital cases to come forward with constitutional challenges. And he set forth a blueprint for how one would build a claim that the death penalty across the country is administered in a manner that is unconstitutionally cruel and unusual. There was a motion that was filed just yesterday in a federal capital trial in Vermont, the case of United States v. Fell in which the defendant claimed that the federal death penalty was unconstitutional and followed the blueprint that Justice Breyer set forth in bringing that motion. There was a petition for writ of certiorari that was just filed in the Supreme Court yesterday coming out of Pennsylvania in which a defendant using the blueprint that Justice Breyer wrote, asked for the Supreme Court to grant certiorari. We know that there are lawyers across the country in many different states that are seeking evidentiary hearings to develop the factual record that will be appropriate for the court to review. Now the fact that there are lawyers doing this doesn’t mean that the court is necessarily going to hear it. And the fact that Justice Breyer and Justice Ginsburg invited the review doesn’t mean the court is just going to take any case because someone has used the magical words, “The death penalty is unconstitutional.” But I think that we are pretty close to the Supreme Court reaching out to accept review of the case. But I think the court is going to be looking for the right case. When that will happen, we don’t know. What case it’s going to be, we don’t know. But I think it’s pretty certain that it’s going to happen in the near term as opposed to the long term.
Judge Alex Kozinski: We also don’t know what would happen if they did take it. With the current make of the court, I could certainly see them coming back significantly on the post Furman and quotations on the death penalty; all of those procedural hurdles, I can see them taking another look and saying, “We’re going to look at it and see if we were right in Furman v. Georgia.” If they do take it, I think the rest of them will actually decide to actually streamline the process of executions.
Robert Dunham: I think that’s one of the reasons that no one is quite sure of what’s going to happen right now. The common wisdom, which isn’t always right, is that right now the vote’s going to be five to four and whether the death penalty’s constitutional or not depends on what Justice Kennedy thinks. And commentators on both sides say that there is a Justice Kennedy who would vote to uphold the death penalty, and there’s a Justice Kennedy who would vote to overturn it. I don’t think anybody can say right now – maybe not even Justice Kennedy himself – how he would come out because we don’t know what the case is and how it’s going to be argued. But this also underscores the importance of the composition of the court. And that’s something that could very well determine the future of constitutionality of the death penalty, who is on the court. And that’s obviously something that’s dependant upon when one of the justices or more of the justices retires and who it is, who is going to be doing the appointing.
Judge Alex Kozinski: Yeah, I think the presidential election is going to be having a lot to say about it. If it’s a Democratic president, then I think there is some chance that they’ll reconsider. If there’s a Republican president, I think it’s pretty much going to be like the last 20 years.
J. Craig Williams: Well, we’ve just about reached the end of our program where it’s time to wrap up and get our guests’ final thoughts and their contact information if they’d like to share it with our listeners. Robert, we’ll start with you.
Robert Dunham: You mentioned the Death Penalty Information Center is an actual nonprofit that provides information and analysis on death penalty issues. If people want to look up more information on the death penalty, they’re welcome to visit our website at www.DeathPenaltyInfo.org. We tweet, we are on Facebook, we have a daily What’s New where we talk about different things that are going on in death penalty. I think one of the key things that we’ve seen over the course of the last 20 years is that among all measures, support for the death penalty is dropping. There have been six states that abolished death penalty in the last ten years. Nebraska is in limbo. The legislature abolished is going to be a referendum to determine what happens next. Four states have moratoriums and another three states came within a single vote of abolition. So there seems to be a national trend in public opinion polls, in the number of death sentences imposed, in the number of executions, and the number of states that are authorizing death penalty. There seems to be a consistent trend away from it. No one knows ultimately what’s going to happen. But the trend suggests that death penalty may be a punishment whose time is passed.
J. Craig Williams: Judge Kozinski, your final thoughts?
Judge Alex Kozinski: There are punishments worse than death and there are punishments worse than death in this country. And I think we have to be very careful when we take on the death penalty and argue, “Don’t worry, if you give somebody a life sentence without possibility of parole, we can keep them safe, there will be no way they’ll hurt anybody else.” The only way that can happen is by putting them in max prisons. And those are fates worse than death. A human being goes crazy very quickly having no contact with other human beings; they are driven to insanity. And we ought to be very careful as to argue against death penalty especially in our focus and overlook the fact that we may in fact be taking those folks away from death and so putting them in situation where they will wish for the executioner. I have a piece about this coming out in the Yale Law Journal. It will be published in January and will be shown online; it will be at the YaleLawJournal.org. It’s not yet up, but shortly after the first of the year, there will be a piece on that. It will be called Worse Than Death. And it comments on a report prepared by the Liman Center at Yale dealing with the power of administrative segregation, solitary confinement and the huge, huge, huge problem, much bigger problem, than the few people on death row is the other many thousands of people who languish in our prisons in inhumane conditions separated from other human beings.
J. Craig Williams: And you also, I believe wrote an introduction to the criminal procedure project recently.
Judge Alex Kozinski: Oh yes, that’s Criminal Law 2.0, you can get it online. Just put in Kozinski Criminal Law 2.0 Georgetown Law Journal. It goes through many of the questions of the weaknesses of the criminal justice system. Not in the death penalty, but in the criminal justice system in general.
J. Craig Williams: Great. And if our listeners would like to reach out to you?
Judge Alex Kozinski: They can email me, Alex@Kozinski.com.
J. Craig Williams: Great, thank you very much. That brings us to the end of our show, I’m Craig Williams, thanks for listening. Join us next time with another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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