In the years since 1976, when the US Supreme Court reinstated capital punishment as a constitutional matter in this country, we've executed hundreds of people. No more than 100 in a year. I believe that's still true.
Brooke Masters: It was down this year.
Joseph Hoffman: No more than 100 in any given year, but many hundreds of executions. You would think that, if the system were as flawed, were as broken as it is being described, we would have multiple examples of documented cases of innocent persons being executed. Now, I know there are people looking for that.
Brooke Masters: And they haven't found them.
Joseph Hoffman: We may yet find one. I don't mean to suggest by any means that I know that all of these executions were of people who were guilty. I can't know that. And people are looking to try to find that case, but to date not a single such case has been documented. There are people who believe it to have happened, but there hasn't been definitive proof of that. And it stands at least as one sort of counterweight to the argument that these cases are so wildly out of control that two-thirds of them are coming out with judgments that are substantively in doubt.
William Schabas: You seem to agree that the system is in some way dysfunctional, although you quarrel about the degree.
Joseph Hoffman: Yes.
William Schabas: Do you agree with the idea that, until it can be rectified, there should be a moratorium on capital punishment?
Joseph Hoffman: When the evidence in Illinois is that the system there, for a variety of reasons, was so dysfunctional that the number of executions equaled the number of people who were found to be innocent, I think you can easily justify making the decision that that moratorium was correct.
William Schabas: What would be an acceptable number. If it's not 50 percent, would 5 percent be enough?
Joseph Hoffman: If I knew that 5 percent of the people being executed were innocent, then of course we should not continue to--
William Schabas: We're talking about people on death row.
Joseph Hoffman: Right.
William Schabas: If we show that there were serious doubts about the guilt of 5 percent of the people on death row, is that enough for a moratorium?
Joseph Hoffman: Not if all those errors are being corrected, no.
James Liebman: We know that it's about 15 percent, if you compare the number of executions and exonerations over time. Let me just say one quick thing about this issue of how much we can infer from the fact that nobody has yet been shown to be innocent and executed. In England, where the death penalty was abolished in part because of a realization that innocent people had been executed, there was a capacity to do an inquest, an actual inquest, where the government mobilized its resources and looked to find out whether that greatest of miscarriages had occurred. Canada has that same inquest procedure, but there is no such power in the United States. And it's even worse than that. or the press wanted to do an inquest. The first thing that they would do is to go to the prosecutor and say, "Give us the file on the case in question." They would do that because the prosecutor's file has the most concentrated evidence about the case. If such a request is made in the United States, the answer is twofold. One: "You don't have the right to that file. That file is private." Prosecutors repeatedly assert that nobody in the US has been executed who is innocent, and yet they won't turn over the files that would show whether they're right. If they really believe this, they should turn over the files and let's find out. Second, in many states those files are destroyed. Even DNA evidence that would show whether the prosecution is right or wrong, whether innocent people have been executed, is destroyed. It seems to me that that's the counterweight to the point Joe makes. You have to take that point with a grain of salt, because, if it's really true, prosecutors wouldn't mind turning over these files to prove that they're right.
Brooke Masters: It's true that there are newspapers right now suing to try to test DNA of people who are dead, and in general the state and the prosecutor fight it tooth and nail, which always strikes me as rather silly, because if you really think you've got the right guy, what's the harm in testing?
Joseph Hoffman: Right, and I certainly would not defend prosecutors trying to stonewall investigations. There's no good reason I can see for that, other than a feeling on their part that this is all just part of trying to make them look bad. But if there's something there that's going to make them look bad, then we ought to know about it. I do think that until the evidence of people actually being executed who are innocent begins to surface, and there are people looking for it, it's going to be hard to indict the system at the level that I think you want to indict it, based on the evidence about what courts do in overturning decisions.
James Liebman: Hold an inquest, and then I'd be convinced.
Randolph N. Stone: I just want to defend Illinois for a minute. What happened in Illinois was the result of a group of lawyers and journalists in Illinois who are very dedicated to the proper functioning of the criminal-justice process and the administration of the death penalty. I maintain that Illinois is probably no worse than any other state where there is a significant death-row population, in terms of the reliability of the verdicts. But you have an Illinois Supreme Court that looks at death penalty cases very carefully, and you have a group of appellate defenders and private lawyers who are very competent in looking at death cases. I think that has resulted in the specific numbers that have been produced regarding reversals. Finally, we have a governor who was willing to take the courageous step of imposing a moratorium. So it was a confluence of factors that resulted in the situation in Illinois. I am confident that those results will be duplicated in other states.
The other point about the second question you raised: Does this person deserve to die? Well, I know we're not going to get off into the moral aspects of it, but my position is that no one deserves to die at the hands of the government. But, not withstanding that fact, it's a question of luck. If you went to the Illinois maximum-security prison and looked at the 20 worst cases of people on death row, and then you looked at 20 individuals convicted of first-degree murder, you would find that there's not that much difference in terms of the brutality, the heinousness of the crime, between the 20 people serving life with no parole and those on death row. It's serendipity. To some extent, it's what judge that individual wound up in front of. What defense lawyer represented the individual who got life versus the individual who got death? Who was the prosecutor in the case?
Brooke Masters: Was the jury considering life and death two days before Christmas and inclined to want to go home?
Randolph N. Stone: Right. The time of the trial. There're so many factors that can flip a case from life with no parole to death that have nothing to do with that ultimate question, as you put it: Does this individual deserve to die? Some lawyers can manipulate the system to get cases in front of judges where the likelihood of the imposition of death is very slim. And that's just a factor that relates to the experience of the lawyer, the resources that are accorded to that particular case. There are so many variables that it's almost ludicrous to suggest that the system is making a rational decision in these cases.
Joseph Hoffman: I'll one-up you, then, because I think that we haven't even talked about or at least have only briefly talked about the two stages of this process that have the greatest impact on the kind of irrationality that you just identified. We've been focusing largely on what happens within the defined contours of the legal system from the time that the capital charge is made to the time that the case is fully reviewed on appeal or in federal habeas corpus review. Whatever one may think of those aspects of the system and how broken they are or not, there are two phases of the system that occur outside of the confines of the sort of legal controls. One is the decision by the prosecutor to seek the death penalty or not to seek it. In New York state, for example, where the death penalty is now revived as a legal matter, although no one has yet been executed, there are district attorneys who are on record as saying that they will not seek the death penalty although it's legal and although it might apply to the facts of the case; that in their jurisdiction they won't seek it. In other parts of New York state, the DAs obviously are perfectly willing to use that statute and to go after the death penalty. In individual cases, at least the DAs' decisions are on record as to why they're taking that stand. In a lot of individual cases, DAs and prosecutors don't even have to say why they're deciding to seek the death penalty or not to seek it, and the legal system can only take the case as it comes from the prosecutor's initial charging decision.
Brooke Masters: Isn't there some evidence that that's where the racial bias really clicks in?
Joseph Hoffman: Yes, at least that was believed to be true at the time of the McCleskey study. That was at least a significant component of it, and it seems pretty clear that any stage that involves an essentially discretionary decision is a stage at which people's biases can have an impact. The other stage, which is almost never talked about, is the stage of deciding who among the people on death row will actually have an execution date set for them and find themselves propelled towards execution. In a few states, that decision is made in a legally guided way, but in most jurisdictions that decision is more political than legal. That is to say, a governor or some other elected official decides to sign a warrant saying that John Smith will have an execution date set. It's not as if there's a system that rations the executions and decides who gets lined up first for that. In terms of the haphazardness of who actually makes it to the stage of the execution, there's almost no control over that whatsoever.
Now, it was mentioned earlier that we execute very few people compared with the number of people that we give death sentences to. I think it's perfectly accurate to say that there isn't enough of a demand for executions, for death, to actually execute the numbers of people that we put on death row every year. That's why the number on death row keeps going up, because we put more people there than we as a society really want to execute, and that's reflected in the political decisions of the people who sign these death warrants. In some states, there is no reasonable prospect of having an execution for the next couple of years, because, politically speaking, the people who would have to make that decision don't see any political value in pushing that case forward. Now, that's an example of where, if somebody wanted to try to rationalize the system and make sure it really was the worst people, the worst criminals, who got executed, one would want to take a look at that. But those two stages at the very front end and at the very back end we actually don't look at much at all, in the legal sense.
William Schabas: These are just more arguments that would seem to bolster Jim's point and show that it's a system that is not working in any reasonable and rational way, and therefore can't be justified. Again, just so there's no mistake about it, people who are arguing against the use of capital punishment are not arguing for letting everybody out of jail.
Joseph Hoffman: Of course not.
William Schabas: Really, all what we have to do is to be able to justify this major incremental increase over life imprisonment, in some cases without parole. And if that's all we're talking about, it's got to be a rational system. And it's not. And you've just given more arguments for why it isn't.
Joseph Hoffman: If the argument is that the system has got to be perfect in its allocation, or pretty close to it, if the 100 people that are going to be executed next year in this country have to be the 100 most deserving out of the 3,500 on death row, then the system will in fact not pass that test. There's no question about that. I don't think everyone thinks that that's the test that the death penalty has to meet in order to be sustained. But if that's the test, the system will definitely fail.
