William Schabas: People in the abolitionist movement used to say that support for the death penalty in the United States was a mile wide and an inch deep, and it looks like that's starting to crack, to me. In some way. And more and more there is a realization, even at the highest levels, of governors and people like this, that there is something seriously wrong about it and that it's not worth it. It's just not cost-effective for the amount of energy and money that gets put into it; it doesn't give anything to a society that does have serious problems with crime rates and violent crime and needs to deal with them. This is just such a colossal waste of energy and resources that ought to be put into more productive forms of law enforcement. Randolph N. Stone: If I had to pick one thing that has made a difference--and I agree there probably are a number of variables--the one thing I would pick is technology. You can now, by DNA technology, for example, prove that someone didn't commit a crime. As technology improves and becomes more available, more people in our society will realize that we're convicting people who are innocent, who can actually be proven innocent. The publication of these cases, the Innocence Projects around the country, and all the people who are focusing on technology as a way to actually prove innocence--we haven't had that before. I think that's been a major factor contributing to the shift in perception.
Brooke Masters: Is there anything to the fact that, because we have executed a significant number of people over the last three or four years, more than a handful in every state, a lot of juries give the death penalty because they think, "The guy will get out anyway if I don't give him the death sentence"? Now they're facing the fact that people are going to die.
James Liebman: There is some evidence that juries and maybe the public at large are more willing to use death sentences if they don't believe they will mature into executions. We didn't used to think of Texas as the big execution state. Instead, it was Louisiana. In the late 1980s, Louisiana executed a whole bunch of people within a very short span of time, and immediately after that it was very difficult to get death sentences from juries in Louisiana. People thought there might be a connection there, and I do think the fact that there were in 1999 almost 100 executions, 99 executions, did bring the reality of executions home to the people. But I think the point that's really coming home to people goes back to our earlier discussion about why Americans want the death penalty. Americans are individualistic, freedom loving, all of that. That makes them suspicious of government. They're willing to use government to punish other people when they feel those other people are threatening their freedom, but they also worry about how government exercises its power. They worry about the abuse of power by the government, and about government incompetence.
This point was captured in an editorial that was written by George Will, a conservative columnist, who said, "I've been a strong supporter of the death penalty for years, but it suddenly dawned on me that the institution that decides whether or not there should be a death sentence, and who gets executed, is the government. Now that there's this DNA evidence proving that government makes mistakes, it makes me realize that the death penalty is like any other government process. It's subject to problems, it's subject to error, it's subject to incompetence, it's even subject to malfeasance and bad faith." Americans are very mistrustful of government; they believe, for example, that prosecutorial misconduct is a real possibility. This shows up in the polls. They may not care about executing juveniles, but they do care about prosecutorial misconduct. And I think that that's what's happening now. There is a sense that this is a government operation that needs scrutiny. I don't know where it will lead. Americans have scrutinized a lot of their institutions recently, and although we've "ended welfare as we know it," we haven't entirely ended welfare. This could be a reformist kind of thing or it could be an abolitionist thing in the end. We don't know where it's really going.
Joseph Hoffman: I agree with that. I don't necessarily see anything that I can describe as a trend that means anything in terms of either the number of death sentences imposed by juries or in the number of executions--particularly the execution figures, although they were down last year--that is so dramatically affected by things that are completely independent of what we're talking about. It's affected by who the governor is, what the political climate is in a state, so I don't see that as evidence of a shift.
The shift is the sea change in the court of public opinion. And, in that sense, it is coming back to these core concerns about whether the system is getting the right people convicted and whether they are the people who should be given the death penalty.
The triple whammy, in my analysis, starts back with the most celebrated criminal-justice case of our time for all kinds of reasons, the O.J. Simpson case, which if nothing else convinced people that the criminal-justice system could be screwed up in a lot of ways. From the investigation to the prosecutor's behavior to the defense attorney's behavior to the judge's behavior to the jury's behavior, at almost every turn, people saw every day on the television a case that convinced them that, yes, the system can make mistakes. People have done studies about respect for juries and so forth, and we've gone through a period of five, six, eight years now where the public has been primed to believe that mistakes can be made at the trial level. Then you combine that with the Illinois situation of the governor, a Republican governor, announcing that he is so concerned about error and substantive error that he's going to stop executions in Illinois. Then you combine that with Jim's own study, which got a lot of press last summer for a lot of good reasons. In the court of public opinion, people have become prepared to accept the idea that there is this rampant error.
I think the public is at the point where it's either going to demand reform or it's going to become fed up with the way the system is working, at least in some places. I can't generalize and say that this will happen in every state, but in some states I think you're going to see a serious move to abolition if the prosecutors and the judges do not take the steps that the public feels are needed to find and correct these error rates. Add to that the cost factor, which we haven't put on the table explicitly; most of the public doesn't realize that the legal machinery of the death penalty costs a lot more than keeping someone in prison for the rest of their life. There were legislative hearings in my home state of Indiana on abolition of the death penalty last year for the first time since 1976. It's not because Indiana suddenly went soft on the death penalty; it's because the legislators who agreed to hold the hearings didn't want to raise taxes, and they saw that that's where they were heading. If we continued to put more people on death row and continued to have litigation in these death penalty cases, they would have to raise taxes, and that changed their view about whether to consider abolition. They didn't do it, but they were willing to consider it.
William Schabas: We're just seeing a gap of 20 years, seeing the United States following the rest of the world, and maybe the growing international consensus on this subject is in its own way percolating into the United States. Agreed, it's a society and a political culture that's very resistant to international public opinion, but it's not totally indifferent to it. We know Governor Carnahan commuted a death sentence when the Pope asked him. It's unfortunate that the Pope doesn't ask systematically. I think that maybe, maybe we're not giving the international context enough credit; that in some way it is influencing elites, and influencing American public opinion in its own way.
It's not in the interests of the American people to be international pariahs. Or, for that matter, to find themselves associated on this question with Iraq, China, Iran, Libya, Saudi Arabia, countries which are not even, in American public opinion, viewed with great admiration in terms of their treatment of their own populations on all kinds of questions, and that's one where there's a perfect meeting of the minds of American public opinion and these rogue states, so to speak. So maybe that's dawning on people that it's not the best company to be in.
Joseph Hoffman: I'd be careful about going too far with that argument. Probably one of the few things that happened within the past two years to get Americans back up and bolster support for the death penalty was Benetton trying to start a campaign from Italy to get Americans to abolish it. If they run in parallel, that may in fact happen. But if abolition does occur in this country it will be because of domestic concerns.
Randolph N. Stone: I think with the new president and with his increased focus on globalization, whatever that means, and the increased communications of people around the world via the Internet, and other electronic means, without a doubt at some point--it may not be in the next 20, 30 years--the United States will become more aligned with the international community, not only in the death-penalty context but in many other ways. So I think it's just a matter of time. When, as opposed to whether, it's going to happen is the question, and maybe I'm overly optimistic on the issue.
James Liebman: One place to watch right now on exactly this question is North Carolina. In Illinois, you had this very dramatic situation of more exonerations than executions, and you had a governor who took very much to heart his responsibilities in granting clemency or not, which added up to the moratorium. North Carolina is very different. There you have a spontaneous, broad-based movement for a moratorium that's really come out of the religious community. They've been slowly, careful, cautiously going city by city. Almost all of the major cities in the state now have issued a city council recommendation for a moratorium. They're working through the legislature. There's a real grassroots, broad-scale effort there, and it seems to me that that's the kind of pressure and movement that Joe is referring to. If it's going to happen, it's going to have to come from the public, and it's going to have to come widely from the public. I think that's the place to keep an eye on to see what kind of strength there is on the issue. Another thing is interesting here. Joe, Randolph and I are lawyers, and we've always thought about this issue as one for the courts to resolve. Now we're at a moment when the public is seizing this issue back and saying, "We've left it in the courts long enough. The courts have not solved it. Something has to be done about it." And for me, at least, this represents a sea change in thinking about the issue. People are saying for the first time in years that this really is not a question of law or constitutionalism or morality. It's really a question of policy that the American people are going to have to resolve state by state.
Randolph N. Stone: Just speaking about state by state, the other movement I think that is beginning to grow slowly is the idea of eliminating the death penalty for juveniles. There's still a number of states in the country where the execution of 16- and 17-year-olds is permitted, and I'm beginning to see movement in the direction of eliminating that practice, as well as focusing on the idea of abolishing executions for the mentally retarded, which still exists in some states around the country.
Joseph Hoffman: It does seem to me worth saying that--and maybe this comes back to a comment that you made near the very beginning--if this goes the way it might, it's going to be because of the basic goodness of American society, not its dark side. It will be because Americans will finally get to a point where they simply won't tolerate a system that could produce such injustice. And we will hold our breaths over the next few years to see whether that is in fact the way it's going to play out
Brooke Masters: So, bottom line, in 2015, is the United States still going to be executing people?
Joseph Hoffman: I would guess that there will be some states in 2015 that will still have an active death penalty.
Brooke Masters: Will it still be 38?
Joseph Hoffman: No, I don't think so.
William Schabas: It will stop, but I am less confident that public opinion will change dramatically. The death penalty will have been long abolished in the United States and people will still be doing public opinion polls when some heinous crime takes place showing that 75 percent of people believe in execution. That's the case elsewhere in the world. In countries that have abolished it, when some terrible crime takes place you do a poll and you find that a majority favor capital punishment. So I think it's a little unrealistic to think that it's all just going to be about public opinion polls. It's true that we're going to see what we're already seeing, that is, growing recognition that there's something profoundly wrong with how it's all administered, but even if it gets tidied up, which may happen. You may find ways to clean it up and to make it more predictable and rational and reliable capital punishment, but it's not that that has fundamentally changed minds elsewhere in the world where the death penalty has been abolished. Let me point out how recent that is. I mentioned before that in South Africa we're talking 1995. In Russia, we're talking 1997. In France, we're talking 1981, 20 years ago. Twenty years ago they were still sentencing people to death in France. So it's a recent thing; that's why looking 15 years or 14 years down the line is very realistic. But it won't just be because one day Gallup goes out and does a poll and says we're down to 49 and then all the politicians say, "OK, it's over now." I don't think that's how it's going to take place, either.
Brooke Masters: Your prediction, Professor Stone?
Randolph N. Stone: Twenty-fifteen I think is a little soon. I'd say 2025, maybe.
Brooke Masters: Professor Liebman?
James Liebman: I'm about where Randolph is. But this is a judgment I make more because I have a certain faith in the American people and in progress. However long it takes in this country, the march of progress, nationwide and internationally, has been away from the death penalty and away from that method of solving problems. And I think eventually this country will get there, but exactly how what's happening now plays into that is very hard to figure out.
Joseph Hoffman: See, I don't think this has much to do with Gallup polls; as you say, it depends on when you ask the question and under what circumstances. But I don't have any doubt at all--and I'd be interested to know if any of you do--that if there is documented evidence that is essentially unassailable that the public is willing to accept as such that an innocent person has been executed in the past 25 years during this modern era, I don't have any doubt that that will in reasonably short order lead several states, if not many states, to abolish capital punishment. It's what happened in England in the late '50s and early '60s. Abolition in England did not come from the elites. It came from three notorious cases in which people felt that there were substantive injustices that occurred. And that caused a groundswell of grassroots sentiment for abolition. And I think the same thing would happen here if there were documented evidence of a person having been put to death, even though they were innocent. I think a majority of the American people in at least a number of states would rise up and demand that the system stop, and whether they could then be convinced that there were reforms that could be adopted to make it work better, I can't say, but I don't have much doubt that that's in some sense the most obvious example of how public opinion could bring down the death penalty.
William Schabas: I wish I could agree with you, because there will still be a Timothy McVeigh, and people will say--
Brooke Masters: But that's different.
Joseph Hoffman: It is different, because the public won't necessarily be seeing those two things at the same time. What will happen is if a documented case is ever produced, then there will be an absolute firestorm of media coverage, of people writing stories about what happened to this poor person, and in that kind of maelstrom I would be very confident that in a number of states legislation would quickly come to the forefront and would abolish the death penalty, especially in those states where the support is not so deeply entrenched and not so historic.
Brooke Masters: It sounds like we're going to reconvene.
James Liebman: In the year 2015.
Joseph Hoffman: Right. And what's interesting is that the things that have happened in the past year, including Jim's study, have in some sense provided just that shadow of doubt for many people that this might be a possibility, when five years ago I think very few Americans would have entertained that as a serious, credible possibility that an innocent person had actually been executed.
Brooke Masters: So let's set a date to get back together in 2015. For Fathom, I'm Brooke Masters.
