Brooke Masters: Hi, I'm Brooke Masters, a criminal-justice reporter for the Washington Post. We're here at Columbia University today for Fathom to discuss the complicated issue of the death penalty and its continuing use in the United States.

This won't be a religious or moral discussion about the appropriateness of the death penalty. Rather, we will consider two more practical issues: why the United States still executes people, while other nations do not; and whether the American judicial system administers the ultimate sanction fairly and accurately. We'll be looking at allegations that capital punishment is biased against the poor and against racial minorities. And we'll also be looking at recent reform efforts that seek to protect against the execution of the innocent.

Panelists discuss the reasons that the United States still retains the death penalty at a time when many other countries in the world have abandoned capital punishment. (17:55 min)

With me today are four experts: James Liebman, Columbia University law professor and author of a major study of the death penalty entitled Broken System: Error Rates in Capital Cases, 1973-1995; Randolph N. Stone, who directs the Mandel Legal Aid Clinic at the University of Chicago and has handled a number of death-penalty cases in the Chicago area; William Schabas, director of the Irish Centre for Human Rights and the author of the Cambridge University Press book The Abolition of the Death Penalty in International Law; and Joseph Hoffmann, an Indiana law professor who writes about death-penalty issues and frequently lectures to judges, prosecutors and defense lawyers on how to handle capital cases.

Let's start with you, William Schabas. Why do Americans support the death penalty and continue to use it, while most Europeans have discarded it?

William Schabas: It's a puzzling phenomenon. It's more than Europeans, by the way.

	Discussion
	What do you think accounts for the disparity between European and American acceptance of the death penalty? According to the United Nations, 123 countries, including all countries in the European Union, have abolished the death penalty. The United States has retained the death penalty both on the books and in practice. What might account for the differing viewpoints on the appropriateness of the death penalty in a criminal justice system?

The international abolition of the death penalty has really hit virtually all continents except Asia. I think the latest figure, according to the United Nations, is that 123 countries in the world have actually abolished the death penalty and 71 still retain it. And the United States is in that group. That's dramatically changed, even in 10 years. Ten years ago, the numbers were about 100 in favor, retaining the death penalty, and 80 had abolished it. Abolition of the death penalty is basically a post-Second World War phenomenon, and the curious thing is that the United States is very much part of the trend for about the first two decades. So, by the middle of the 1960s, the end of the 1960s, the death penalty ceases to exist in the United States for all intents and purposes, and public opinion in the United States is about 50 percent, perhaps even a little more, in favor of abolition. And then something in the mid-1970s switches it all.

People attribute it sometimes to public concern. Certainly there was a debate at the time about high crime rates, and that stirred up the population, but I think there were probably some deeper things at work. I think the United States has, perhaps, a frontier spirit, and I think also it's the tradition of racial discrimination in the United States that has contributed so much to the fact that it's a society that still hangs on to it, whereas Europe, much of Africa and virtually all of Latin America have now abandoned the death penalty. Canada has abandoned it.

Brooke Masters: What do you all think? Why does the United States still have the death penalty?

James Liebman: This is a really puzzling question. That's definitely right, and this is the first question all of the Europeans I talk to about the death penalty ask. Why does the United States, a leader in human rights, a leader in its criminal-justice system, still retain the death penalty? How can the United States retain that practice and still talk about human rights and progress and things like that? One thing that's interesting about the death penalty in the United States is that people's views on the death penalty are highly correlated with other political views they have. It turns out that if you want to ask people one question that would tell you a lot about what they believe about a whole range of issues, a very good question to ask people is how they feel about the death penalty. That's why prosecutors like to ask jurors about it, because it tells them a lot. This comes back to your point about the '70s. That was a time of great political change in this country, moving from somewhat progressive and liberal to the right. It was a time of an increasing sense of a need for self-reliance and of moving away from government control; it was a time of increasing faith in individualism and things like that. Associated with those views is the belief that we're all free actors who ought to be able to do what we want but bear the responsibility for what we do. One implication of that responsibility is that we may have to pay the ultimate price if our acts are bad enough. I also think that people in a highly individualistic society that values freedom worry a lot more about how the next guy exercises his freedom, especially where there aren't so many public and private institutions to control that freedom. It is ironic that a country that believes in a lot of freedom is also unusually repressive in terms of the number of people in prison, and in its use of the death penalty.

Randolph N. Stone: Yes, I think those are good reasons, but I think racism is one of the driving forces, particularly if you look at, historically, who the death penalty has been imposed on and for what crimes. Until the '70s, black men were executed for rape of white women. As recently as McCleskey v. Georgia, which was a famous death-penalty case in which the Supreme Court looked at rather persuasive statistics that analyzed the imposition of the death penalty, the driving factors were the race of the defendant and the race of the victim. The study concluded that the odds of being sentenced to death were 4.3 times greater for defendants who killed whites than for defendants who killed blacks--even though, during that period of the study, roughly half of the victims of homicide were black. The racial angle, unfortunately, cannot really be minimized in the imposition of the death penalty in the United States.

Brooke Masters: What do you think about why it's persisted?

Joseph Hoffman: I'd like to try to separate out two questions, or two issues. One is the way that we decide who gets the death penalty in this country. I'm guessing that all four of us on this panel would have some pretty strong criticisms of the way we make the selection decision, and indeed there are disparities in our decisions about death, disparities of all kinds, race being just one of them. On the underlying question of why the United States continues to believe in the death penalty, I think that today, even if people did not conceptualize some of these cases in terms of race, Americans would still continue to support the death penalty by a pretty clear majority. Jim may have hit on the reason we are so different from our European brothers and sisters on this question: because of America's very strong belief in personal responsibility and free will, and the notion that you are an individual who is responsible for your own actions. We have never, as a society, been willing to accept the idea that someone's choices are essentially determined by things that society has done to them or for them or about them. That kind of notion about an individual being connected more closely into a social framework is something that I think is fairly well accepted within a European context, but it is not accepted at all in the United States. We tend to believe much more strongly in the notion that you're an individual no matter what happened to you as a child, no matter what happened to you as a teenager, no matter what happened to you as an adult, and that you still bear the personal responsibility for the choices you make. It is that belief more than anything else that is at the crux of just about every death-penalty case and every death-sentencing hearing. It's what defense lawyers in capital cases try to overcome, and it's what prosecutors in death-sentencing hearings try to remind the jury about. And I think on that belief alone you would find a dramatic difference between Americans and Europeans.

William Schabas: I'd be cautious about too much of an American exceptionalist view. I take all these points, and I agree with many of them trying to account for the differences. At the same time, the differences aren't all that great between the two societies, and, as I say, it has to be broader than Europe, because you have abolition of the death penalty in South Africa, for example, and deep into Asia now--because when we talk about Europe that includes Russia, that includes Siberia, it includes many of the former Soviet republics. If you did a public opinion poll in Russia about the death penalty today, you would probably get numbers that aren't very different from the numbers in the United States. If you did one in South Africa, you'd get numbers that aren't very different, and yet, in those two countries, the death penalty has, in the last six or seven years, been abolished.

Part of the explanation is in more mundane things. One of the things that people in the United States take for granted but that absolutely horrifies people from other countries are judges who are elected, and prosecutors who are elected. That just skews the system altogether, in that the people who are administering the system have to pander to the most sort of base and vile instincts in society, which unfortunately are there. I mean, if judges in Ireland or in France or in Russia or in South Africa were elected, you'd probably get judges who wanted to impose the death penalty there, too.

Brooke Masters: But it's juries, not judges, that impose it in the United States, fundamentally. Judges rarely reduce, it is true, but juries do.

William Schabas: Prosecutors ask for it, first of all. And you have the situation of judicial abolition of the death penalty, which has happened in so many other countries,

	Thinking Point
	Do you think it is a conflict of interest for elected judges and prosecutors to be involved in death-penalty cases?

where judges knocked it out before legislators did. It's become so difficult now, because of the screening not just for the judges, who are elected, but also for federal judges, who have to go through this process of being vetted for their political correctness--or incorrectness, rather--before they get appointed. They all get knocked out. I think it would be impossible for a judge who is outspoken in opposition to the death penalty, a federal judge, to get appointed now. They'd never get past the appointment process.

James Liebman: Let me ask a question. I've heard the point that you make, that if you look at Canada, or even England, there's probably majority support for the death penalty after a particularly bad crime occurs. But I've also heard it said that the elites in most European countries simply won't let it get back onto the political scene because the elites basically all agree that you can do without a death penalty. So that keeps the issue off the screen, even though, as you say, the public support might be different. And I think that might be there to have the death penalty. Also, in this country, there's so much decentralization of the government, with our federalism and all of that, that there's not just a national elite that you have to worry about. You also have to worry about a government in each of the states that essentially controls whether there's a death penalty there or not.

William Schabas: But, in the United States, you've come close to judicial abolition twice in the last 25 years. The case that Randolph referred to, the McCleskey case before the Supreme Court in 1987, came within one vote of the Supreme Court knocking it out forever. The only way you would have been able to bring it back would have been with a Constitutional amendment allowing for the death penalty, and that is a complicated matter and probably would never have come to pass. You came within a hairbreadth, and the judge who was the swing vote later said that it was the decision in his whole life that he regretted the most, so that he opposed the death penalty. So the elites here have come very close to it as well, in terms of abolishing it.

Brooke Masters: The decentralization argument is important, because if you look at the places where people are more strongly going to be anti-death penalty, they have abolished it. There isn't a death penalty in the Northeast, which is the most liberal part of the country.

Joseph Hoffman: I want to not only agree that the local level is important; I also want to present the other side of the picture, which is that a lot of the international developments that you've described are developments that are driven by a global consensus and international law consensus that the United States simply, for better or for worse, does not view itself as being party to. It is, again, one of the peculiar aspects of legal life in the United States that our Supreme Court and our state courts do not, on issues of crime control and other issues as well--education, family law--think they're bound by the rules of the international legal community on this matter. I would guess that, of the countries you've years that have gone in the direction of abolition, some of which may have done so against the sort of court of public opinion in those countries, the overwhelming majority of those did so because of pressure to conform to an international legal regime--whether it was something they had to do to join the European Union, because there's a requirement that you move toward abolition of the death penalty in order to be a full-fledged member of that group, or whether the pressure comes from elsewhere. Japan still has a death penalty. It is still active; it still executes people. But there's growing pressure in Japan, because of the feeling that the United Nations conventions maybe suggest that they ought to be heading toward abolition. In other countries, that has a big effect. In the United States, it has virtually no effect on the decision makers who control these matters, judges and legislators. They just don't care very much what the European Union thinks about the morality or the appropriateness of the death penalty. That's another reason for the developments in the United States. We think it's our own internal matter to decide. And you're right that there are at least a couple of occasions when our Supreme Court came very close to making a momentous decision, but I'm not sure I would characterize it quite the way you did. Certainly in McCleskey, the Supreme Court could have done something that would have struck down the death penalty in the state of Georgia, where the evidence established this racial disparity. Who knows how far that decision would or would not have gone in other states? We now know that there's evidence of similar disparity in some other states, but until the evidence was actually vetted and tested in court, we can't say for sure that McCleskey would have invalidated the death penalty nationwide. In any event, American courts and American legislators think that this is a decision for America to make and are not particularly concerned that people in the European Union or the UN might think that we're out of step with an international consensus.

Randolph N. Stone: Let me respond to the two points you made, which I think are very good. First, shortly after the McCleskey opinion there were a number of states that duplicated the results of the study. I think it's reasonable to say that in most states where there is a significant minority population, the results in McCleskey could be duplicated. About the second point on the international consensus, you're absolutely right. But I think even in the United States there is a growing movement. It's slow, and it's small, but eventually I'm hoping that the United States will come into line with the rest of the world on this issue as more and more of us are educated about international norms. Whether it will happen quickly or not is certainly a matter of debate.

William Schabas: Certainly internationally, one of the big things propelling abolition forward is that international legal norms are discouraging and ultimately prohibiting the death penalty. When Russia joined the Council of Europe, during the 1990s, that was it. It was a condition. Russia did it. Public opinion, Yeltsin, they were all in favor of the death penalty, but in order to get not only the legal right to join the Council of Europe but also the legitimacy that they sought as a progressive, modern state, it involved abolition of the death penalty. In South Africa, post-apartheid resistance to the death penalty was associated--far greater than in the United States, and despite the enormous crime rates-- with repression, with racism, with apartheid. But you make a good point about the regional differences, considering that in the Northeast, the progressive-liberal Northeast, the death penalty is really not going to happen, although it has been brought back here in New York.

Brooke Masters: They have yet to execute anyone. They have yet to execute anyone in New Jersey, either.

William Schabas: But we all know that the heart of the death penalty in the United States is south of the Mason-Dixon Line, and it's just back to the point that Randolph and I were making earlier, that so much of it is bound up with the racist past and present of the United States.