tv Politics and Public Policy Today CSPAN October 30, 2015 3:00pm-5:01pm EDT
extreme fashion, i would think. >> it has. and, of course, the statistics reflect that. i think both the bureau of prison statistics, sentencing commission statistics as well as the judicial administration, all of those statistics reflect a steep decline in the prosecution of drug offenses in the federal system. >> one of the things that senator hatch, we're seeing is the five-year mandatory minimum for carrying a gun during an offense, crime, and the possession of a firearm after conviction of a felony have fallen under the obama administration steadily which is one reason i'm not too impressed with the idea of more laws to impact lawful people who want to maintain a firearm when we've seen a decline in existing gun law prosecutions, rather
significant numbers actually. so, all of you, thank you. senator cornyn, i do think -- and i believe you mentioned it miss mcdonald that the ability to have people in prison begin to work before they're released has real potential. maybe mr. tollman you mentioned it. i do think that can work. my observation over the years of attempts to have education and other kind of character-building programs in prison before they're released doesn't seem to have much benefit. do you agree with that, miss mcdonald? >> it's very hard to find a -- excuse me. it's hard to find a current or a released prisoner who has not been offered programs galore. they do exist in prisons, but i think work gives a sense of self-esteem and is the best training for re-entry that we've got. the risk assessment, the
to change, they never will change. but there are people in prison, miss campbell may be an example of that, who if given an opportunity to reduce their level of confinement by dealing with their underlying issues, whether it's drugs, alcohol, mental health issues, work skills, education, general education, can earn a lower level of confinement, perhaps a halfway house, perhaps in-house confinement which is the goal, as you know, mr. tolman -- to provide those incentives what do have the desire to turn their lives around. but for those who don't, i agree, miss mcdonald, we can't design enough programs. because none of them will work if somebody hasn't made the decision in their own mind that they want to turn their life around and take advantage of that. mr. droch, what's your
experience been with the prison fellowship? >> thank you, senator. for all the senators, in our -- in the testimony that i submitted, there's a citations of some of these results that are through time, and senator cornyn, one of the them is the study done by the texas policy council of the inner -- inner change freedom program that started in 1998 in texas, that shows i think to senator session's point, significant numbers. we've seen that in -- through the iowa department of corrections, the minnesota department of corrections. these things are available. i do think that they should be expanded. i think that they should be available to people. the mention i make in my testimony was i said i had a drinking problem. i had to enter recovery for alcoholism because alcohol was my solution. i think too often we think the person -- the crime they're doing is their problem.
it's not. it's their solution. so what we need to do, we need to go in when people have the willingness, and we work at prison fellowship even if someone is never going to leave prison, it says i want to live my life differently for the rest of my time here and make the transformation worth something because it's available and it's been demonstrated time and again and by studies all throughout this country that people can when they have the willingness change their behavior and their character and that faith plays an important role in that, senator. and i think that can be demonstrated right in facilities in texas. >> judge mukasey, we've been talking about mandatory minimums and the length of those sentences, but could you just comment. is it the certainty of punishment or is it the length of the sentence that provides deterrence in your view? >> well, they both do obviously. but i think it's certainty that's far more of a deterrent than -- once you get beyond five
years, i think a lot of people involved in the criminal justice system are involved because they don't think in segments longer than five years and usually a lot shorter than that. sometimes not longer than five minutes. but the certainty of punishment is a major deterrent. and that's one reason why i think that the old -- you know, the guideline system before booker was more effective and why i think mandatory minimums to some extent ought to be retained. >> mr. chairman, i would just like to make one last point and then to thank the panel. and that is that it seemed like we've been from a swing of the pendulum here from the time back last time we took a systemic view of our criminal justice system. we realized that crime was rampant and that something else needed to happen. and so the incars ration rates went up.
mandatory minimums, the stacking that's been described here. but the reason why that was done i think was at least in part the sense that people who commit the same offense tried in different courts could end up with vastly different sentences, which is not what i would call equal justice under the law. so, we've seen a swinging of the pendulum, and maybe it's time to look at -- and i believe this legislation does carefully look at some of the mandatory minimums. particularly with regard to nonviolent offenders. but we do need to do both. we need to have the certainty of punishment as deterrents and we also need to make sure that people who commit the same acts are treated similarly and not dissimilarly. i don't know how we aspire to a system of equal justice under the law where people receive such wildly disparate punishments for the same crime which has been the goal of some of the mandatory minimum
policies. so, i just do think we need to be very careful. and i appreciate this great panel. you've made us all think and question some of our assumptions, and i hope you'll hang in there with us as we work through this process not only on this committee but through the senate and also with the house and eventually to the president. so, thank you very much. >> thank you, senator. you're absolutely right. i was here when we did the mandatory minimums and we were tired of some of the courts that didn't enforce the law and didn't give sentences the way they should have, and that's what happened. now, i think most of us feel it's gone way too far and we've got to find some way to resolve that. that's one reason for this bill. senator lee will be the last witness -- the last senator. >> thank you, mr. chairman. i want to echo and agree with and build on what senator cornyn said just a minute ago. with one clarification, which is that i don't think we should see this bill as something that's going to reverse the pendulum. i think by and large the
american people feel good about the direction of our criminal justice system in the sense that no one is calling for a return to the system that we had prior to 30 years ago. no one that i'm aware of that's involved in this effort on this bill is saying let's go back to what we had before. that's not what this is about. nor would it be fair to say that this bill starts to push the pendulum back in that it swings in only one direction. that's not true either. we're making adjustments in this legislation to the existing framework. in some cases those adjustments might result in some shorter sentences. in other cases those adjustments might result in larger sentences. and, in fact, we do create some new minimum mandatory penalties and in some cases we extend the statutory maximum, so this is not a reversal. this is an adjustment that is made necessary by what we've seen in recent years, that it's occurred to us that in some instances, not in every instance, but in some instances
we overpunish crime and that's not always a good thing. overpunishing crime results in a waste not only of money but of human lives and we want to avoid that wherever we can. judge mukasey i was wondering if i could ask you a question. you've spoken about the important role that congress plays in setting the limits of punishment. on the top end and the bottom end. setting the top range and the bottom range. now, if we as a congress can agree, if we can get to the point where most of the senators and most of the members of the house agree that certain penalties under current law are greater than necessary and if we decide to reduce those penalties, wouldn't it also be appropriate in that circumstance for us to make those reductions available not only to those who will go through the system in the future but also those who have already been sentenced? >> it may or may not depending on the case. i think that many of those cases particularly those that end -- paradoxically those that end in
pleas rather than trials are the result essentially of a negotiation involving both charges and length of sentence, such that you would not necessarily want to come in after the fact and decide that that bargain doesn't make sense anymore. >> and that's why we wouldn't want to make them automatic? >> correct. >> we would want to make sure that they would apply on a case-by-case basis such it wouldn't occur automatically but it would have to occur in a separate proceeding in front of the article three sentencing judge. >> article three. >> right. that would be a big problem if we were talking about putting this authority in article one judges. didn't even know there was such a thing now that i -- >> i think that -- i think th that -- also lodging the responsibility in the individual districts is important because they are the people who, "a," are familiar with the case and, "b," are going to have to put up with the consequences, so that part of it is very important. and i was -- i spoke to the attorney general about this on
friday, and the deputy testified here today that that's going to be their policy, so i think that's all to the good. >> thank you, judge mukasey. mr. tolman, you were asked some questions about the mens rea component. i want to be clear, this has long been a concern of mine and for the last several years, ever since i came to the united states senate, i've been very concerned about the overcriminalization trend generally and about the mens rea problem in particular. in the sense that we've got so many federal crimes on the books that when we ask groups like the congressional research service, things like this. when we ask them how many federal crimes there are on the books, they can't tell us. so, one of the things this bill does is to identify the number of crimes that are out there. we've got to first get a handle on the number of crimes that are out there. and as we do that, i think we'll find ourselves in a better and better position to address the mens rea problem.
not every federal crime on the books has an absence of a mens rea requirement or has some kind of an inadequate mens rea provision. mr. tolman, based on your understanding of the bill, the crimes that are addressed in this bill are not the crimes that we're talking about, are they? >> no. >> they're not the crimes that lack a mens rea requirement. >> no. that's correct. they have mens rea. and with respect to the mens rea issue, it is a worthwhile endeavor. and i would love to work with senator hatch going forward. it appears as though it's an appropriate vehicle to follow the current legislation. and the reason is this legislation will identify what those -- what those crimes are. some estimate over 30,000 potentially. there needs to be an as careful an analysis of those crimes and
the appropriate mens rea to apply that may not be there in applying the current legislation to this legislation. it is, however, something that should be on the near -- you know, the near future of this congress to address the mens rea issue. and i'd be happy to work with the congress in doing that. >> but there's certainly no reason to delay this legislatation for that and, in fact, you would argue that we do the opposite. >> well, you know, having worked here, certainly this hearing is evidence of the fact that members of congress can get along on both sides of the aisle and propose a bill together still. it's evidence that members of congress work past 5:00. but i also know that it -- sometimes adding bills that are very well supported to an existing, negotiated package, that would be my concern, senator hatch, and others, that adding the mens rea element at this point may really disrupt the ability to pass this
legislation which is frankly -- is -- hangs on a very, very thin precipice on whether it will succeed or fail. >> i will add, it may pass without my support if we don't do something about mens rea because i think it's essential to any criminal -- any criminal action. and, by the way, it could come into play in these matters as well. i think you'd have to admit that. >> i have learned to never underestimate you, senator hatch, and your ability in the senate. i do appreciate that it is a significant issue, that the senators highlighted. you're absolutely right to highlight that, and i would really look forward to working with this congress on that issue. >> we appreciate your comments. we appreciate every one of you for being here, and we're sorry it's so late and had to be at this particular time. i had to make it back from utah so i could be here, but we want to thank each and every one of you for your testimony.
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remembers the life of author jack london. and sunday at noon on "in-depth" our three-hour conversation with economist walter williams as he shares his life and career in response to your calls, e-mails, facebook comments and tweets. on "american history tv" on c-span3 saturday evening at 6:00 p.m. eastern historian done doyle looks at the world view of the american civil war and the perspectives of foreign-born soldiers who joined the cause and on "oral histories" an interview with supreme court justice clarence thomas on his upbringing in the segregated south and the influence of his grandfather on his career. get the complete schedule at cspan.org. the supreme court heard the oral argument this month over whether florida's depath sentencing policy is constitution. in hurst versus florida the
issue is a trial whether timothy hurst be sentenced to death for the killing of a co-worker in 1998. the judge in the case went with the jury's recommendation. mr. hurst's lawyers argued that his disability disqualifies him and the judge should not have made the final ruling on the death penalty. this is an hour. we'll hear argument next in case 147505 hurst versus florida. mr. waxman? >> mr. chief justice, and may it please the court, under florida law sympathy hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death. that violates the sixth amendment under ring. in florida and florida alone, what authorizes imposition of the death penalty is a finding
of fact by the court of an aggravating factor, a finding that the trial judge makes independently and, quote, notwithstanding the jury's recommendation as to sentence. now, the state here contends that capital sentencing juries make implicit findings that satisfy the sixth amendment under ring which the trial judge then simply ratifies. that is wrong. whatever the jury's recommendation might imply about the specified aggravating factors, the florida supreme court has repeatedly rejected the notion that the jury's verdict is anything other than advisory. florida law entrusts the factual findings of aggravators to the judge alone who may do so on the basis of evidence that the jury never heard and aggravators that the jury was never presented with. >> is there ever a case in which
the jury found aggravators and recommended the death sentence and the judge reversed that finding? >> there may well be. this is principally a case about the finding of death eligibility not sentence selection. >> either way -- >> yes. >> -- is there ever a case in which the jury did not find an aggravating circumstance but the judge did? >> well, we don't ever know what the jury found about any of the specified aggravating circumstances. the only thing that the jury tells the judge is, we recommend life/death by a vote of "x" versus "y." >> right, but they can't recommend death unless they find the aggravator, right? >> well, no. no. as a matter of state law, that's not correct. they can't recommend death unless seven of them each believe that some aggravator is satisfied. >> all right. >> but the florida supreme court -- and this is a -- this is another ring problem here. the florida supreme court has
recognized that where two aggravators are presented, it is impossible to know even if a simple majority agreed on a single aggravator. >> well, that's a common feature, though, of jury deliberations. an aggravator is whether the murder is particularly heinous and it can be for -- for a number of factors. one, the victim is a juvenile, so maybe three jurors find that. or an officer was also killed, or it was in the commission -- in the course of another felony. in a typical case, a finding that -- the murder was heinous, you have no idea whether the juror -- jury as a whole made that determination or if there were 12 different reasons. >> mr. chief justice, florida and florida is the only state -- the only death penalty state and, therefore, the only state -- that does not require or permit the jury to be told
that it has to agree -- and in all other states it's unanimous. but cannot even be told that a majority have to agree as to the existence existence. >> that's true of every jury determination. you could have the jury determining that, you know, the person didn't commit the offense because, you know, his alibi was good or because, you know, somebody else did it or, you know, any number of 12 different reasons that they think he was not guilty. it doesn't have to be agreement by the jury on the particular basis for their verdict. >> we're talking here, mr. chief justice, about elements of the crime and as this court explained in ring, the existence of a statutory aggravating factor is an element of a death eligible crime. and can anybody imagine a world
which would be the analog in florida if the jury at the guilt/innocence phase of any trial, shoplifting trial, were told, now, look, i'm the one who will decide if the defendant is or isn't guilty as a matter of law and eligible for punishment, but i'd like your input on what you -- whether you think each of the specified elements is or isn't satisfied. i mean, that -- nobody would stand for an argument like that. >> i'm not sure. are you sure that if you have a crime that can be satisfied by various elements, the jury has to agree upon the specific element that satisfies it? >> the jury -- if they are distinct elements, and this implies the shad point that the state is raising. if the state consistent with long historical tradition and a
finding of equal culpability chooses to permit a particular element. in shad it was premeditation or the mental state, to be satisfied either by premeditation or felony murder, that is fine. but that is not the florida system. florida requires as a matter of law and the florida supreme court has said this over and over again, that a defendant is eligible for death only if the trial judge finds as fact beyond a reasonable doubt that a particular statutory aggravator exists. and i submit even if that were not the case, extending shad, which held that in light of 150-year history of states, including in the mental element for first-degree murder, either felony murder or premeditation, that combining those two elements didn't satisfy the death penalty. none of that is here.
this is a question of the sixth amendment and the eighth amendment. no state ever has said that the jury can just decide some model of aggravation. they just -- they don't agree on the specific element. and that would violate, i think, the sixth and eighth amendment precedents. >> i would think -- i would think just the opposite, that the necessity of fiending the elements of the crime goes all the way back into the mists of history, and this necessity of finding an aggravator -- aggravating factor, we made it up, right? i mean, that's just recent supreme court law. so, if either one of them should be satisfiable by simply finding the generic conclusion rather than agreeing upon the particular species at issue, i would think it's -- it's -- it's the latter rather than the former.
>> justice scalia, i'm reminded of your separate opinion, i think it was walton versus arizona, where you were choosing between two things that you didn't particularly like and one of them was the fact that the court had made, recently or not, had made a finding of a -- beyond a reasonable doubt a factual finding of a specified aggravating factor an element of the crime. and whether it's recent, whether the courts should or shouldn't have done it, it has, and it under ringet just like any other element of the crime. and on the shad point, i think the other thing i would have said is the florida supreme court, and i'll refer the court to the bevel case. the florida supreme court has said that the 16 aggravating factors that makes one eligible for death are vastly incommensurate in terms of relative levels of moral ability opposite of the predicate of
shad. >> could i ask you this about ring? i wasn't on the court at the time of ring, so could you tell me if ring is entitled to greater weight as a precedent than, let's say, gregg versus georgia and the other cases upholding the constitutionality of the death penalty? >> oh, i'm not -- i wouldn't be prepared to say -- to assign weight to either of them. i think ring is certainly predicated on gregg to justice scalia's point. if gregg hadn't decided that there has to be a determinate, specific appellate reviewable narrowing of sentencing jury's discretion, ring wouldn't come up because an aggravating factor wouldn't be an element. >> do you think this scheme, assuming we agree with justice scalia, that you don't really
need unanimity? would it still be applicable under the case that said we needed a unanimous jury, but, you know, 9 out of 12 is okay? do you think 7 out of 5 is okay? >> i hope it was clear from our brief that we think 7 out of 5 is not okay. it doesn't require this court to overrule opadacap >> we are not required to do anything we could say it's not the functional equivalent. but is it good law? should we overrule it? >> we think for the reasons stated in our brief you should overrule it and particularly in the eighth amendment context where the question is death, the jury should be unanimous. there is no other state that permits anyone to be sentenced for death other than a unanimous determination by the jury. and the state of florida requires unanimity for shoplifting, just not for death.
it requires unanimity on all the other elements of the crime. now, even -- opodaca is an unusual -- >> wait a minute. they require unanimity for conviction, right? >> yes. and -- >> just they don't require unanimity on the sentence. that's quite different from whether the person committed the crime or not. >> justice scalia -- exactly. and justice scalia, leaving aside our eighth amendment point in our brief that followed on justice breyer's concurrence in ring, this is all about the eligibility, not the determination of what sentence applies. and you have held that the existence of a specified, statutory aggravating factor is a condition. it is an element of capital murder, and it is by stat stat
substitu statute. as pointed out in mcdonald it's an extraordinarily unusual case. even there six justices said a simple majority rule would not pass muster. we need to -- once -- when an assignment is made to a jury in a case, to decide beyond a reasonable doubt the existence of an element, however the state defines the element, we need substantial reliability that the jury actually performs those functions. and in this case -- and, again, in this case if it were true that the sentencing jury was actually determining death eligibility, which it is plainly not, as we point out the eighth amendment would certainly be violated under caldwell, because this florida juries are told that they do not determine death
eligibility and the state simply can't have it both ways. either the jury is correctly told that its role is merely advisory. in which case there is a ring violation, or the instruction that it's given violates the eighth amendment under caldwell. because as in caldwell it misleadingly, quote, minimizes the jury's sense of responsibility for determining the -- >> mr. waxman, do we -- do we just treat as irrelevant what was involved in this case, that is, the two aggravators that were alleged, the brutality of the murder and that it occurred during a robbery, those were obvious that they existed. is that not so? >> i think it's not so. it's probably a reason why -- i mean, the heinous, atrocious and cruel aggravator can never be obvious. the state isn't even arguing
harmlessness as respect to that. and as to robbery i think it's important to recognize the following. the state made a choice. . they didn't even even indict timothy hurst for robbery. the sentencing jury was not even instructed on the element of robbery. the argument of harmlessness was never raised in the proceedings from the sentencing proceedings onward including the brief in opposition in this case until the gregg brief, and even there the gregg brief is simply arguing that there was a fatal concession. but in any event, justice ginsburg, there is evidence in the record from which a jury could certainly find that timothy hurst, although he was found guilty of first-degree murder, did not, in fact, actually commit the robbery. the jury was told that to find the existence of the felony murder aggravator, it had to find -- and i believe this is on page 211 of the joint appendix, that it had to find that the murder was committed while he in
the course of him committing a robbery, all of the physical evidence in this case that relates to the robbery, the bank deposit slip, the money, the bank deposit envelope and a piece of paper in leili smith's handwriting toting up the proceedings were all found in her possession. so although it is not this court's ordinary function to determine whether something was or wasn't harmless as in ring, it was remanded for that purpose, i think in this case it manifestly was not harmless. and if there were a remand or any question by this court on that count, it ought to be remanded to the state court, not only to determine constitutional harmlessness but whether there was a waiver by the state in its deliberate choice never to mention this either to the second sentencing jury or thereafter. >> mr. waxman, am i understanding the case properly?
the informant who had all of the physical evidence was the main identifier of the defendant, correct? >> correct. >> and -- >> there were -- there was an eyewitness from across the street who testified that he saw somebody go into the popeye's and he positively identified the defendant. and i believe there was another cooperator who backed up leli smith's testimony. >> so, the defendant claimed, however, that this informant was the one who did the crime. could the jury under the evidence that existed concluded that they both did it? >> certainly. >> and that's why it's debatable whether it's harmless. >> yes. and, in fact -- >> because what makes it an aggravator is if he's the one who actually did the killing. >> that's correct.
>> that he wasn't -- >> well, that's what the jury was instructed. >> uh-huh. >> the jury was instructed that in order to find the felony murder aggravator it had to find that the murder was committed in the course of him committing the robbery. >> personally. >> yes. >> all right. that's -- >> now, the statute, the actual aggravator is different, but that is what this jury was told. >> mr. waxman, can i give you a hypothetical state system and this is a two-part question. you tell me if it is consistent with the sixth amendment and if it is, what makes this case different. okay? so, my system is that a jury whether in the penalty phase or in the guilt phase has to make a determination of an aggravating factor, okay? but once that's done, once the jury decides on an aggravating factor, the judge can do whatever she wants.
the judge can add aggravating factors. the judge can reweigh the aggravating factors as compared with the mitigating evidence. the judge can do any of that stuff. but the judge has to leave alone the aggravating factor that the jury finds. so, in other words, the judge can't give death when the jury finds life, and the judge can't throw out the jury's factor. but as long as that jury makes that aggravating factor determination, the judge can do anything. is that consistent with the sixth amendment? >> okay. you're asking only about the sixth amendment and not the eighth amendment point. >> yes. >> okay. so, the -- so just to be sure that i'm specifically answering your question, if the jury is told you must find for the defendant to be eligible for death, you must find beyond a reasonable doubt the existence of at least one of the statutory
aggravating factors. and i would also say for sixth amendment purposes, you must either be man muunanimous or th must be 10-2 and the jury does so find. and then you have the sort of belt-and-suspenders legal system that the state is positing that florida has here, where the judge can say, okay, i'm the one who does the sentence, so i can weigh the ags and the myths. i can't -- he is death eligible because the jury found beyond a reasonable doubt that a statutory aggravator exists, but the judge can say, nonetheless, i'm giving life. there's nothing -- there's no violation of the sixth amendment when that happens. the question is, in this case, when the sentencing jury has concluded its work -- i mean, and i'm assuming in a case where there's not a conviction for a prior aggravated felony. when the sentencing jury has concluded its work, is the defendant eligible for the death
penalty under state law yes or no. and in florida the answer is unquestionably no. even if we knew that 12 of the jurors found the robbery aggravator here, there would be a ring violation just as if we knew that 12 of the jurors found that he had killed the defendant in this case, but they had been told i just want your input on this because i, the judge, will decide -- >> is that what makes a difference, then, in the end, you're saying the jury has to be specifically told that that's what it's doing? that -- you're saying it's the necessary part of a constitut n constitutional system for the jury to be instructed that it has the responsibility to find the aggravating factor that serves as a precondition to death? >> at a minimum, if, in fact, the jury is performing that
function, it cannot -- at least in a capital case -- be told that it is not performing that function, that its advice -- that its verdict is only advisory. >> but -- >> what if it's told it has to decide on life or death but the judge is -- if you decide on death, the judge is going to review it and the judge has the power to sentence to life? >> if the -- i mean, there's no constitutional violation -- our view and this, again, is justice breyer's eighth amendment point which we endorse. our view is that capital sentencing always has been and as a matter of constitutional law should be done by a jury. we're not arguing that other sentences have to be jury sentencing and so if a jury recommends -- if a jury says it's death and the judge says, well, i disagree, i'm only going to sentence him to life, there's no constitutional -- >> i'm trying to understand the limiting of your argument that what is done under the florida
statute diminishes the jury's sense of responsibility. the jury's sense of responsibility will be diminished to some degree if they know that their verdict is not necessarily the final case. isn't that the case, whether they -- whether they're told you make a recommendation and the judge decides or you impose a sentence but the judge can impose a different sentence , a lesser sentence, they still don't have to bear the responsibility of making the absolutely final decision. >> justice alito, let me separate out what i'm calling the selection decision, that is life or death and the weighing of ags and myths and the elvibt decision which is all of the elements of capital murder have been found beyond a reasonable doubt by the jury with either unanimously or a sufficient majority and, therefore, when the sentencing jury is done you are eligible for the death penalty. leaving aside the eighth amendment question whether the
constitution then requires -- requires the jury to make the intensely moral judgment about whether the penalty should be life without parole or death, assuming that a judge can do that, so long as the jury is not told that its input -- which is how the florida supreme court has put it -- is -- so long as they are not told that its advisory, so long as they're told that you as the finders of fact have to find that beyond a reasonable doubt that this capital crime was committed which includes the following elements, including one of the two specifying aggravators, the constitution is satisfied. the caldwell problem is an eighth problem. caldwell was an eighth amendment case. and in caldwell what -- i mean, what the jury is told here, if the system exists as the state posits it, what the jury is told here is far more misleading than
what was told in caldwell. and caldwell the jury was simply told at closing argument that your decision is going to be reviewable by the mississippi supreme court, and a majority of this court held that that unconstitutionally diminished the jury's responsibility. here the jury was told over and over and over again, inconsistent with florida law, that your judgment is merely advisory, i will be the one to make this determination. and either -- if that isn't -- that does appear to be the system, that violates ring. if it isn't the system and if somehow it can be argued that the jury is making implicit findings of aggravation writ large, that renders somebody eligible for death, then there is a plain caldwell problem. and that's our position. may i reserve the balance of my time? >> you may.
mr. windsor? >> mr. chief justice and may it please the court, florida's capital sentencing system was constitutional before ring versus arizona and it remains constitutional in light of ring versus arizona. what ring required was a jury determination on those facts on which the state legislator conditions the imposition of the death penalty. in this instance mr. hurst got it, the elements necessary to make a defendant eligible for a death penalty is the existence of a murder and one or more aggravating circumstances and what the other side calls the advisory sentence includes in it a finding as this court recognized in united states versus jones that the jury determined there was one or more aggravating circumstances. the jury -- >> i'm sorry, how is that? when florida law says that the judge has to find an aggravator to make someone eligible for the death penalty? >> well, i agree with the other
side that there's a different between the sentence selection and sentence eligibility so once it's eligible because the jury has found all the necessary elements, then what happens after that, your honor, does not implicate ring at all. >> would you tell me how this is different than arizona? in terms of the system, just like in the arizona case, there had been precedent by this court that arizona law has been constitutional. unlike arizona, every florida -- every court that has -- every judge who has looked at it, not one of them has said that they believe personally it's constitutional. even the courts affirming -- affirm on the basis of the prior precedent, and you have a little less than half the court directly saying it violates ring. so, what's the jury finding when it says 7-5? >> well, if i could back up --
>> even when it says a murder's been committed. felony murder wasn't. felony murder was charged but we don't know if they found a robbery, right? >> at the guilt phase they convicted of first-degree murder which could either have been felony murder with a predicate underlying felony being robbery or premeditated murder. but to answer your actual question -- >> how do we know which one they picked? which makes him eligible for the death penalty? >> our position is he became eligible at the sentencing phase when the jury made its advisory decision because the jury at that phase was instructed that if you determine no aggravating circumstances are found to exist, you must recommend life. >> but you do agree that that -- it doesn't require unanimous jury. >> it does not require unanimous jury. >> and a simple majority is all you need. >> that's right. >> so -- >> that's right. that's a jury finding. >> even a functionally equivalent unanimous jury
finding those aggravators. >> i'm sorry? >> we don't have a unanimous or functionally unanimous jury finding those aggravators. >> our reliance for the final eligibility determination is that 7-5. but i would make this point the 7-5 -- there are two things that go on when the jury determines whether someone should be sentenced to death or not. first the jury looks and determines whether the state has proven beyond a reasonable doubt an aggravating circumstance. that's the eligibility piece of it. then they get into the sentence selection process where they weigh the aggravators that they do find, assuming they find some, against the mitigating circumstances and, of course, the defendant under this court's precedent is allowed to put in any evidence that he -- >> i'm sorry, the jury's not asked to find an aggravator. >> i'm sorry? >> it's not asked to find an aggravator. >> it is, your honor. it's instructed it may not return -- >> it's not found at the jury verdict. >> i'm sorry? >> it's not found at the trial. >> the sentencing phase. >> the sentencing phase. >> what if the jury comes back
at the sentencing phase and says we recommend life. >> yes. >> and the reason i guess no one would know it because nobody found an aggravating. can the judge nonetheless give death? >> no, not unless -- with this $ caveat. >> you have to have a page in their opinion in the brief, you know, page 20 where it cites about six florida cases which suggested to me that they thought the answer to that question is a matter of florida law was, yes, the judge can sentence to death. >> let me be -- >> was it so or not so? >> as a matter of florida statutory law it is permitted. we acknowledge under ring it would not be permitted in the circumstance where the state is relying on the recommendation to satisfy the eligibility. now, you could have a situation -- >> i missed the last part. the jury comes back. >> uh-huh. >> they say, life. >> right. >> and we know through mental te telepathy the reason they found that is no one found an aggravator.
my simple question is, as a matter of florida law can the judge impose the death sentence? yes or no? >> as a matter of florida statutory law, yes. as a matter of ring, no. with this -- >> that isn't florida -- i mean, it's federal law. so, ring is over. so, you say the answer is now no. >> with this caveat, justice breyer. >> you say this case is like ring and therefore -- not this case but any case in which they recommend life. >> not any case, your honor. >> i would like to know your caveat. what is that caveat? i'm on pins and needles here. >> the caveat is this -- >> i am, too, actually. >> there are multiple ways that defendant in florida can become eligible in death. the sentencing phase because of the finding in the jury's recommendation. in other instances a person can become eligible before the sentencing phase either because they have a prior violent felony conviction or because they have a contemporaneous conviction. for example, if someone murdered two people and were convicted of
double murder, that person at the guilt phase by virtue of that guilt jury's verdict has been found to be eligible for the death penalty. and so at that stage then in your hypothetical, justice breyer, if that sentencing phase jury recommended life, the judge could override it without violating ring. now, i will tell you that as a matter of florida state law, the judge in that circumstance would face an exacting standard. and as a matter of fact, no judge has overridden a jury's life recommendation since before ring. so as a matter of function it's not something that happens in florida. to answer your question, we do believe it would be constitutional in the situation i described. >> suppose the jury came in hung. >> i'm sorry? >> on the sentence. >> if the sentencing -- >> if the jury instead of being 7-5, it was hung. could the judge then impose the death penalty? >> not in this situation, your honor. because that would result in a life recommendation, a 6-6 vote
is tantamount to a life recommendation. and the judge could not override that if he were relying on the jury sentencing finding to satisfy ring. and even if he weren't, he or she weren't, like i said, it's an exacting florida state law standard. the judge would be reversed for overturning that unless he or she determined or unless the appellate court determined that no reasonable jury in those circumstances could have imposed or recommended a life sentence. and as i indicated, it's been since 1999, since any judge actually overrode a life recommendation. >> just so i understand, so you're saying that it is possible that under florida law, the jury wouldn't find the existence of an aggravating factor, and then there are different ways this would come out, the hypothetical was a hung jury, but the judge could then proceed to find an aggravating factor, and impose the death penalty. now you say this hasn't
happened, it would probably be reversed. but theoretically this could happen? >> that could not happen consistent with ring, your honor, unless there were some other jury finding or admission that established death eligibility. >> you're saying it couldn't happen consistent with ring, meaning there are certain applications of the florida law that would be unconstitutional even in your view. >> that hypothetical that we've explored here, again, with the absence of another aggravating circumstance proven outside, and that actually happens in most cases, justice kagan. >> we don't sit in judgment of the theoretical scheme that florida has set up, do we? >> no, your honor. >> we have to ajudge that there has been unconstitutionality in this case. >> that's correct, justice scalia. and in this case there is a jury recommendation, actually two jury recommendations. >> can i give you another hypothetical scheme, notwithstanding that we don't sit in judgment of hypothetical schemes? >> sure.
>> suppose the jury finds an aggravating fact but then the judge has this whole separate hearing, right, in which other things are presented to him. >> mm-hmm. >> and the judge says, you know, i don't actually agree with the aggravating fact that the jury found but i have my own aggravating facts, and i'm doing all the weighing and i come out in favor of death. i assume you would say that also would be an unconstitutional application. >> no, your honor, that would be consistent with ring, because again, once death eligibility, and there's a substantial difference that this court has recognized over the years between the determination of who is eligible for death and then of that universe of people eligible for death, for whom is it appropriate. >> yes, quite right. but i'm hypothesizing a case in which the jury finds that death eligibility marker, but the judge throws that one out and substitutes his own. you think that would be constitutional? >> well, the judge in that instance wouldn't be throwing it out. >> no, he does throw it out. he says, i don't agree with that, but i'm substituting my own.
would that be all right? >> that would be okay, because eligibility would have determined, just like if in my double murder example the judge believed that -- you know, if he were sitting on the jury maybe he would have acquitted that person of the double murder, and of course you can't just override the jury's verdict )uñ in that instance, that eligibility was determined he had been the decision maker, maybe he would have decided differently. the person is eligible for death, and then it's up to the -- >> i have to say that answer surprises me, because the death sentence there is not at all a function of the jury's eligibility. the judge has tossed out that eligibility finding and substituted his own, which then leads to the death sentence. how can we say that's possibly constitutional under ring? >> because the point in ring was to make sure that no person was subject to a greater penalty than they bargained for when they did the crime without a jury finding. and in your hypothetical the jury finds there is an aggravator, so there is a jury finding that that person is --
entitled to the punishment. >> the judge said that jury finding is utterly irrelevant to his decision about whether to impose death. but he's imposing death based on something that the jury has not found. >> at that point the judge's determination is separate from the selection point. the judge is exercising the discretion to sentence within -- a person who is determined by a jury to be eligible for the death penalty. >> that didn't happen here, did it? >> no, your honor. >> the thing is, you can't really tell whether that happens in a wide variety of cases. this goes to the question of because the jury doesn't actually have to find specific things, only the judge has to find specific things, you often are not going to be able to tell whether the judge's sentence is based on the same aggravating facts that the jury has found. >> but it doesn't need to be, under ring. because once the jury has determined there is an aggravating factor or if it's been admitted, then the person is death eligible and ring is completely finished. there's nothing more to do under
ring. >> even though the jury is told, now, whatever you say, it's advisory, it's not binding, so you have made a finding of an aggravator, but it's not a binding finder of an aggravator, the jury is told whatever they say is advisory, doesn't that make a difference? >> no, what the jury is told is that its ultimate recommendation is not binding on the court. and that's true. that's one of the great benefits of florida's system. florida's system was developed in response to the court's decision in furman. the court has said the florida system provides additional benefits to the defendant. off judicial backstop -- >> that was before ring. >> that was before ring. we're not contesting that ring would require a finding of those elements. but once the jury makes its recommendation, even if it recommends death, the judge can override that for any reason, just based on disagreement alone, which makes it unlike the
usual capital -- excuse me, the usual criminal proceeding where the judge -- >> i'm sorry. >> is it clear to the jury that they are the last word on whether an aggravator exists or not? >> what the jury is told is that they cannot return a death recommendation without finding an aggravating circumstance. >> and they're also told that the judge is ultimately going to decide whether your recommendation stands or not. >> the judge is going to ultimately impose the sentence. that's true. that's both true under caldwell -- >> shouldn't it be clear to the jury that their determination of whether an aggravator exists or not is final? shouldn't that be clear? >> well, i don't think so, your honor, because the determination of aggravator doesn't yield a death sentence unless the judge in his or her own opinion believes -- >> i'm talking about what
responsibility the jury feels. if the jury knows that if -- if we don't find it an aggravator it can't be found, or if we do find an aggravator it must be accepted, that's a lot more responsibility, even just, you know -- well, you know, if you find an aggravator and you weigh it, and provide for the death penalty, the judge is going to review it anyway. >> i'm not sure that's an accurate characterization of what goes on. it's not that the judge must accept -- the aggravator determination has no purpose or no point other than determining eligibility and the weighing. if the judge determines that the death sentence is not appropriate, for whatever reason, then the fact that the jury found an aggravating circumstance makes no difference. >> suppose in your earlier hypothetical the judge -- the jury finds an aggravator that occurred in the course of the robbery, and therefore there is death eligibility. then it goes to the judge.
and the judge says there's simply no evidence to support that aggravating factor, but i find another aggravating factor. under your view, the judge could go ahead and impose the death penalty? >> in that instance, that's a little bit different, as i understand it, than justice kagan's hypothetical. first of all, the recommendation doesn't specify which -- but this is my hypothetical. >> okay. so to make sure i understand -- >> which honestly sounds like the same. >> i think the difference is, respectfully, includes the finding that the judge finds no evidence to support, as opposed to just disagreeing with their -- excuse me. >> and what would happen? >> if you had a situation, and again, this would be limited -- let me make sure i'm limiting the answer to the situation where the state is depending on the death recommendation. >> yes. >> which is, the minority of cases, as we've said in the brief. if the jury made a specific finding as to a specific
aggravator, again, they wouldn't be instructed on that aggravator unless there was sufficient evidence of it at the threshold stage. but if the judge concluded that there was insufficient evidence, than he ever would have submitted to the jury, then -- >> there are two good analogies in other areas of the law. no one need ask whether six members of the jury thought there was a threat but no actual. or seven members thought actual, but no threat. threat or actual. i don't think so. so i support you. on the other hand, imagine a normal sentencing case. the statute says you get aggravated punishment if you had 50 grams of cocaine. the jury finds he had 50 grams of cocaine. no, sorry. the statute says aggravated sentence if 50 grams of cocaine or meth.
the jury finds he has 50 grams of cocaine. i don't think the judge could say i'm going to give you the aggravated sentence because i don't believe there was any cocaine but i do believe there was meth. >> that may well be right. that's one of the reasons the jury is not asked to find specific aggravating -- >> but we do know that the judge here now, still, your having conceded ring, we know that the jury can, if the jury finds aggravating factor x, have death on a completely different aggravating factor that the jury never thought of, namely y. we know that, and now compare that to the hypothetical of cocaine and meth, and then we have aprendi, which i disagree with still. >> i think, your honor, in the cocaine and meth example, i
believe that the court would look, as they did in jones, and say, is the legislature setting this up as distinct offences or as one offense that can be satisfied by heightened possession of cocaine or meth. if it were the latter, then the jury would be instructed to find one or the other without specifics. >> do you think a 7-5 recommendation is finding an element of the crime that makes you eligible for the death penalty by a unanimous or functionally equivalent unanimous jury? >> we do, your honor. and let me say -- >> then what do you do with the statement in our case law that says a simple majority is not a unanimous jury? >> we don't say that it's a unanimous jury. let me step back and say, the 7-5 vote, by the way, is not necessarily five votes that there was no aggravating circumstance. because again, there's two things that go on in a jury
room. one, they decide whether there were aggravating circumstances. two, they -- >> they don't agree with which one? we don't know whether it was premeditation or robbery. it could be 4-3 or 2-5. it could be anything. >> i'm talking abin the sente e sentencing phase now. >> right. >> 7-5 could well mean all 12 jurors found a robbery and all four jurors found heinous and cruel. >> what does the 7-5 tell us? >> the 7-5 tells us, at a minim minimum, the majority of the min numb of the jurors found beyond a reasonable doubt the existence of aggravating circumstances. >> not the same one. >> not the same one. getting back to justice breyer's point, the courts in these situations look at what the legislature, it's definition of the elements. we know as a matter of state law that the element at issue here,
to take someone not eligible for the death penalty and make him or her eligible for the death penalty is the existence of one or more aggravating circumstances, not a specific one. so it is like shad versus arizona where you can't say whether the jury agreed there was premeditation or felony murder. in fact that was the case at this defendant's guilt phase back in 1998. he was convicted of first-degree murder. and the guilt phase jury was instructed that they could return that verdict either by finding premeditation or by finding felony murder. and there was no jury finding as to which one it was. and so as a matter of -- i think to answer your question about whether they all need to be the same or not, it would depend on how the state -- >> do you believe that a simple majority is a jury unanimously or functionally unanimously finding that element beyond a reasonable doubt? >> there's certainly finding of beyond a reasonable doubt. we're relying on the court's decision in apodaca. >> that was 10-2.
>> i'm sorry. >> does 10-2 automatically mean that 7-5 is okay? >> not automatically, your honor. if you look at apodaca, they were rejecting the same arguments that this petitioner is asking the court to accept, which is that the long history of unanimity should bring it into this system. i'll say this, too, the 7-5 is not the same kind of jury verdict that you would have in a guilt phase because of this backstop, because of the other protections that florida has put in place. even if it's a 7-5 vote, you still have the judge coming behind that jury who, unlike at the guilt phase, where he must accept the jury's findings unless they're not supported by evidence, he or she can disagree or any reason. he or she can give mercy for any reason. and that happens a lot. so we cited some cases in our brief where a man was convicted of murder, in a horrible sexual assault, and by virtue of those two convictions, was necessarily eligible for the death penalty.
the jury heard all of the evidence, made a recommendation that he receive the death penalty, and the judge said no, i'm going to sentence him to life. and so this court -- this gets back into the jury versus judge sentencing. but there are some real benefits associated with judicial sentencing. if you go back to profitt, this court recognized the advantages of judicial sentencing because you won't have someone's life or determined exclusively on the emotions of the jury. >> can i go back to the kind of hypotheticals that justice kennedy and i were proposing. let's say a jury has been presented with evidence that the murder was for pecuniary gain, which is one of the aggravating factors. and the jury comes out with a recommendation of death. and that was the only thing that was presented to it. so you know that the jury has made a death eligibility determination on pecuniary gain.
then it goes to the judge. the judge says, you know what, i don't really think there's enough evidence of pecuniary gain, but i've had this whole hearing and i find that the crime was heinous and whatnot, and now i'm going to sentence the person to death. now, you say that that's fine; is that right? >> well, let me -- i realize it's a hypothetical, but let me tell you why that couldn't happen in florida. a judge would not instruct a jury on an aggravating circumstance for which there was not sufficient evidence to find that. and so your hypothetical would not happen. >> well, you know, no. well, he's heard more evidence, because there's a whole new hearing that he has. and now he's considered it more thoroughly, and he thinks, no, i don't agree with that anymore, but i think it was heinous. so that would be fine? >> again, that's not this case, because there was no additional evidence. >> yeah, yeah, yeah.
>> if the judge found that there was no evidence of any aggravating -- >> i'm throwing out the jury's aggravating factor. but i'm substituting my own. i thought that was what you told me, that that was constitutional under ring. >> i think it depends why you're throwing it out. as with any jury finding, if the judge finds at the guilt phase that there is insufficient evidence to find any element, he would not rely on the jury's determination. >> this is just as a matter of sentencing. let me get on with my question, because i think you answered this already. the appeal that's taken, right, the appeal is focusing now only on what the judge has found, isn't that right, under florida law? the appeal, if the person came in and said there was insufficient evidence, the appeal would only be as to the judge's findings and not at all to the jury's. >> well, if i understand the hypothetical correctly, someone is convicted, has a death recommendation, a death sentence, and is appealing to
the florida supreme court. >> and he says there was just not enough evidence of all these aggravating factors, but that would only be as to the judge's aggravating factors. it couldn't possibly be that he would challenge the jury's. >> well, the judge's aggravating factors would be detailed in a written order. but if there were -- >> i mean, i'm just suggesting the whole appeal process suggests that the crucial death eligibility determination is being made by the judge, because that's the only death eligibility determination that the appeals court is ever going to review. >> well, i think that gets to another benefit of florida's system, is that they do have this to review. there's been some suggestion of jury sentencing as a -- >> yes, look, they have something to review. the problem is it's the judge's thing they're reviewing, not the jury's. and that's a sixth amendment problem. >> i don't think it's a sixth amendment problem, any more than here at the guilt phase, when he
appealed, and there was an examination of the evidence, they didn't know whether the jury found on felony murder predicate or on first-degree murder. they're reviewing the conviction, and they're reviewing the evidence that sustains it. or that may sustain it. >> how about if the jury -- >> to what degree is there a real dispute here about the presence of the two aggravating factors? >> there is none, justice alito, in my view. and i know that there was some argument a moment ago about the evidence suggesting that someone else may have committed the crime. we cited in our initial brief in the florida supreme court where they said without any contention thrks thrks is a two-aggravator case. it was especially heinous, atrocious or cruel. he doesn't question the seriousness of those aggravators either. his focus, instead, acknowledging all that, was proportionality review, which is not at issue here, but, by the way, another benefit of the
florida system, that the florida supreme court reviews everything for proportionality. >> can i ask two separate questions on this? >> yes. >> number one, whenever have we said that a jury waiver on an issue is based on the lack of a challenge by a defense attorney? don't we require waivers of jury trials to be explicit and by the defendant him or herself? >> when someone is waiving the jury trial altogether, absolutely. of course that would be a structural error even if there were no objection. this goes more to the element of offense and the court held in washington versus aquendo that they are subject to harmless -- >> where have we ever said that not challenging something is an admission of that something? we take plenty of appeals where people are saying, assuming this state of facts, i'm entitled to x, and then when they go back down, they argue that that assumption is wrong. why isn't this -- >> we've cited other portions
where they had acknowledged that back in the sentencing memorandum, the first go-round. to follow up on the question of whether there is an existence of a doubt, the florida supreme court found both of these existed at the post-conviction opinion, which led to the resentencing that's now on appeal here. they sent it back for resentencing not because of anything having to do with death eligibility or the establishment of aggravators. they sent it back because there was insufficient effort to produce mitigating -- >> has there ever been an appeal in florida where an advisory jury was not given a proper instruction and a resentence was ordered for that reason? >> has there been a florida supreme court reversing a death sentence for -- >> an improper instruction to the advisory jury. >> i would be surprised if there weren't, your honor. but i don't know. i'll look at that.
getting back to the admission, the evidence was clear, there's no question that there was a robbery here, there is no question that there was -- that this was heinous, atrocious and cruel. and we would ask the court affirm the florida supreme court judgment. >> thank you, counsel. mr. waxman, six minutes. >> notwithstanding this flurry of papers, i'm aspiring not to use the six minutes. let me go right to justice scalia's question, which is not a hypothetical, although i'm happy to answer hypotheticals. your question was, was the jury told and doesn't a jury have to be told that as to death eligibility, the element of the crime of capital murder, that it makes the decision? the answer is, it does have to be told that. it certainly can't be told the opposite.
and it absolutely was not told that. it was told over and over again, consistent with the statute, that its decision was purely advisory. and i want to refer the court to the florida supreme court's decision in state versus steele. it is at 921 southern. the florida supreme court in steele said, first of all, nothing in the statute, the standard jury instructions, or the standard verdict form requires a majority of the jury to agree on which aggravating circumstances exist. under current law, the jury may recommend a sentence of death where four jurors believe only that one aggravator applies, while three others believe that only another aggravator applies, because seven jurors believe that at least one aggravator applies. florida goes beyond that.
it is unlawful, the supreme court of florida has said, to require -- to ask the jury, the sentencing jury to provide a special verdict that in any way indicates what their, quote, input is on the sentencing factors. again, steele at page 546. specific jury findings on aggravators without guidance about their effect on the imposition of a sentence could unduly influence the trial judge's own determination of how to sentence the defendant. the trial court alone must make detailed findings about the existence and weight of aggravating circumstances. >> is that a post-ring -- what's the date of it? >> yes, this is post-ring. the court also held that ring didn't apply. it has no jury findings on which to rely.
and in fact, the court also explained later in the decision, in the same decision, and also in its decision in franklin, that florida -- quote, florida bars the special verdict precisely because requiring specific jury findings on aggravators without guidance about their effect would harm the jury's -- the trial court's independent determination. now, counsel, my colleague on the other side here, says that, well, there would not be a statutory problem but there would be a ring problem if we knew that the jury found that no aggravators existed. so how can ring be satisfied, when we have no earthly idea what the jury found? it could be, as in this case, as steele acknowledges, three for
one and four for the other. as to the i think hypothetical question that justice kagan was asking, so, you know, in a circumstance, how much leeway does the judge have to make his or her own decisions on the death penalty? the florida supreme court has specifically allowed the death penalty to be imposed and a determination of death eligibility be made based on evidence that was never presented to the sentencing jury, and based on an aggravating factor on which the sentencing jury was not applied. and the notion that there hasn't been a life override since ring is an interesting fact, but this court, in this court's spaziano decision, in this court's daubert decision, that's exactly what happened. the jury said we want life. the judge said i'm hearing independent evidence and you're getting death. now, as to the supposed concessions in this case, i think i'll rely largely on our brief.
but the notion that the lawyer said, this is a two-aggravator case, is certainly true. there were two aggravators charged. and maybe the jury -- we know that the trial judge found that two aggravators were satisfied. this defendant has been making the ring argument since before ring was decided. he raised this as an aprendi issue at the very first trial. he asked for a bill of particulars for the state to indicate which aggravators it was going to rely on. and he was denied on the grounds that aprendi doesn't apply. again, the central ring problem in this case, the central sixth amendment problem in this case, leaving aside the indertimacy, or maybe 3 for 1 and 4 for the other. which a florida jury finishes
its work, there is simply no question. the defendant is not eligible for the death penalty. only the trial judge can do that. thank you. >> thank you, counsel. the case is submitted. monday on the communique tors, anna, the top democrat on the house communications in technology discusses how congress should discuss cyber security and data breaches. she's joined by kate, politico's technology reporter. >> what i'm struck by is what analysts have instructed us, there are two main pillars relative to cyber security that need to be honored. and 90% of these, up to 90% of these breaches are due to a lack of hygiene in the system and the lack of security management.
>> monday night at 8:00 eastern on the communique tors on c-span 2. now, a discussion on the transatlantic trade agreement, they talk about public transportation and the political environment and the united states. from the cato institute, this is 45 minutes. good afternoon. welcome to our session number four dealing with domestic policy and trade policy. we have very qualified panelists, who i will introduce, still not on? should i lift it higher? that's better? >> there you go. >> okay. thanks, i couldn't hear myself back at all. thank you.
introducing alphabetically, ted alden, senior fellow at the council on foreign relations, began as a journalist, with the vancouver sun, financial times. most important were the several years he spent early mid '90s inside the u.s. trade where he was the managing editor, this was not at a time when it was a weekly publication and you know, you had to read it on friday when it came out. jim colby is best known for his work in congress, although he's now doing really good work at the german marshall fund. for those not familiar with the u.s. congressional system, you should be aware that jim spent appropriate. so his job was to allocate money effectively to various government agencies. it can be fun and get a certain amount of influence in congress when you're passing out money, believe me, but what's interesting is he did not serve in a policy committee that was
dealing with international trade. he dug into trade policy, i don't know if you'd want to call it a hobby or a passion. but, sort of as a result of bill frenzel being my mentor, when he retired, somebody's got to take this mantle and get work on it. >> at any rate, he really developed quite a reputation as an advocate for trade liberalization in congress, was active in getting the nafta approved and in honor of those efforts, at the time he was retiring from congress in 2007, received the washington international trade association's lifetime achievement award. damien levi is the head of the trade and agory cull section at the eu delegation here in washington. but before he came here, he had an interesting opportunity to serve as in the eu commission as deputy chief negotiator for the
launching of the t tep talks. then they sent him to washington to keep an eye on us and try to figure out what we were doing so that the current political landscape in this country must be leaving him entirely vexed. before he was with the commission, he was in a an attorney and a law firm in new york and brussels, so he's seen the process from the private and public sector and from both sides of the atlantic. i'm dan pearson. senior fellow here at cato. before that, i was ten years at the u.s. international trade commission. is my fellow commissioner meredith here? >> she was. >> okay. i spent the 16 years at a major national company. before that, i was on the floor for a few years in the senate. but of particular relevance to this panel, back in the glorious days of my youth when i farmed for a living in the late '70s and early '80 s, among other
things, i raised broiler chickens. i live in hope. that one day, european consumers will be able to purchase and enjoy nutrition boiler chickens that have been delicately rinsed in a chlorine bath. with that for introductions, let's turn to the topic at hand. i had the opportunity last week to hear a presentation by bruce stokes of the research center in which he unveiled some recent analysis that they had done on public opinion in both europe and the united states regarding trade. the figure that is i pulled out from his presentation involve u.s. and german attitudes to the basic question, will t tep be a good or bad thing for the country. sorry, we don't have the eu
numbers. he was impressed with the german results. in the united states, 50% of respondents thought t tep would be good, 21% thought it would be bad. in germany t goods were only 41, so some less and the bads were higher, 36%. so then t follow up question for all those who answered the question in the negative, not being happy with t tep, what's the reason for that? 50% of american respondents were concerned that t tep would lead to job losses and lower wages. only 17% of the germans were concerned about that. however, only 12% of u.s. respondents were concerned that t tep would lead to a decline in environmental health safety standards, automobile standards.
americans not at all concerned about that. 61% of germans think they're going to give their safety away completely if t tep goes into effect. so, it's a really interesting contrast. with that as background, gentlemen, what's your assessment of the public opinion surrounding trade at this time? >> well, i guess go down and start by going down the row, then call on specific people. but i think those numbers are interesting because they represent a reversal of what it was just a year or two ago where the german and all the european support for t tep was much higher than it was in the united states. and it was thought that this was going to be the difficult part was going to be over here, it's still going to be, we'll talk about that political difficult here, but clearly, there are a number of things that have happened in europe that have diminished the support for it. there is the growing nationalism, the growing division, the fact that the
entire all the european parliament has to approve it and all the countries have to approve it. the nsa in germany. the scandal has diminished a loft support for that. then there are all the groups talking about environmental issues. that dan just mentioned. that i think are making people nervous about this. here in the united states, it's clearly been loss of jobs, but with the economy coming back, that kind of diminishes a little bit. so, the support i think for here in the united states has been a bit stronger. it's never been strong for a lot of trade agreements in general. but i think it's an interesting way in which the two sides of somewhat reversed themselves here in the last couple of years since the negotiations were proposed that got underway. >> a couple things. first of all, it's still positive in germany. 41-36. and i think all the country where you have very strong opposition, austria, you have opposition in the netherlands,
belgium, luxurienburg, france, but they're the two in position. i think skepticism is the highest. to be frank, when we started two years ago, it was pushed strongly by germany, austria and those other countries, which exported a lot to the united states and stand to gain a lot. and we had expected there would be more opposition from the south. because typically, in trade policy in europe, you have this opposition north versus the south in antidumping cases, for example. here, it's been the reverse. it's been the reverse with the germman public very skeptical. the deal wasn't explained for a long time to the german public by leaders in government or business. you have to remember, we had a
switch in government in october 2013, so, you had elections then, transition to a new government, so, there was the attention went to elsewhere in germany at the time. but if you look at similar calls in italy, portugal, spain, greece, see very strong support for t tep, actually. i think it's a very balanced mixed fuse. mixed things and that calls for specific reactions. we have been doing much more in terms of transparency to explain t-tep, but it has to be done together with leaders and people who are trusted in their own public opinions. there is no european public opinion. you have 28, if not more, public opinions, so it's up to leaders trusted by the population to explain why it is they call for these negotiations and why they
think it's so important. >> it's great to be here. thanks for the question. you mentioned, i've been watching this for over two decades now and i think we're in a particularly interesting time right now. so, if you go back to the late '80s, early '90s, the conclusion of nafta, but a very ambitious trade agenda. in opposition, it was still just forming. there was a big fight over nafta, but fairly, the opposition at the time from unions, environmental groups, was kind of nascent. they were figuring out their positions, how to run campaigns. post year, the opposition got a lot better. they knocked off the multilateral agreement on investment. you had the protests in seattle and you had perhaps coincidentally, perhaps not, the lack of an ambitious trade agenda. so, we had the long period what we saw from the u.s. and then i think to a lesser extent from the european and were not terribly ambitious bilateral arrangements that move slowly. suddenly, here we are in a
period where you have i think an opposition that is better organized, better informed, more effective. leaders a result of social media than it's been before, but you have a tremendously ambitious trade agenda. the ttp in the united states, the t tip in both the united states and europe. more going on at the kind of plural lateral level. the trade and services agreements and others, so i think we're in really interesting time where you have the proverbial clash of the irresistible force going on here. so, i think how this plays out is going to be really interesting. if you look historically, i would have to say ambitious agreements like this tend to get through, but i don't think they've ever occurred at a time where the public opposition was as strong and organized as it is right now. >> jim, from your experience in congress, you know at times, that congress does feel compelled to do something a little different than what public opinion would subject.
can you give a few thoughts on how congress might find a way to deal with the anti-trade pressures and still come out in favor of an agreement. >> what you just said has been the case since at least since the passing of nafta. consideration of inform nafta, where there was strong opposition, but congress has always had more of a protrade agenda or has been favorable to our trade agreements. that's changing a bit now, i think. you've seen this in the last -- the trade promotion authority in 2002, why one vote, the trade and promotion authority, this time, for president obama by a handful of votes, six, seven, eight votes. so, they've been very, very narrow in close kinds of votes. so, it has become much more difficult to pass these agreements. and what you have of course as historically is a reversal of
roles going way back where republicans, where businesses oppose trade agreements because they wanted protection and so, republicans tended to be against any kind of was it trade agreements in those days, but any kinds of lowering tariffs, anything that liberalized trades and democrats representing working people were more in favor of these trade liberalization movements. now, the situation is reversed. where companies and businesses generally support the trade. labor units have taken a strong stand against these trade agreements. starting with nafta and before that, but starting strong with nafta. as ed said, they've really gotten their voice on this now and they've learned what to do and how to do these grass roots efforts against this thing, even though trade unions represent fewer and fewer people, in the
working, workers today, they still have an inordnant amount of influence in the process. because of the money they contribute and the workers that they provide for door to door campaigning and telephoning and all the other kind of ground work that has to be done in political campaigns. so, democrats tend to pay a lot of attention to what is being said by the trade unions. so, you have this rather contentious argument going on between the two sides. on how this will play out i think is, we really don't know yet. it was said for a long time that tpp would be the very, should have been the easy one to negotiate. but a very tough one to pass. and t tip on the other hand should be easy to negotiate since we have two large civil or integrated economies on both sides of the atlantic. but a tougher one to, and easy one to pass, rather.
more difficult one to i'm sorry, more difficult one to negotiate because of the differences on things like patents and intellectual property and the chickens and a few other things like that, but it should be the easier one to pass. now, i don't think we're going to see that. we found the tpp was difficult to negotiate and we still see all the details of that yet. and we now see that i think t tip is going to be a very difficult one for us to pass. when and if we get it. one last thing, we're not looking at anything that's going to be considered by congress in this administration at the very earliest, be 2017 before this agreement, whatever it is, whether it's piecemeal or a large agreement submitted to congress. i think the interesting thing is to consider whether tpp will even get to congress before the next administration. >> damien, how does it look in europe? i read just this morning that angela merkel has come out in
favor of t tip. not many weeks ago, the european parliament blessed a different concept for investor state dispute settlements, so clearly, there is progress at the political leadership level to move forward. >> right. i think what has been reassuring for leaders here is that the police leadership in europe including european parliament in june and july for a resolution on t tip have continuously supported negotiations including what chancellor merkel has said today and if you listen to the prime minister or the spanish prime minister, british prime minister, they're all in favor and want us to move ahead even when president alamb was here. i think he was clearly in favor of t tip. i think what we hear from american counterparts is that european leaders need to make a better effort in explaining what's going on. i can tell you from the inside
from the european commission, we worked very hard to make it more transparent, to explain more. we never communicated about a trade agreement in languages other than english. now we explained t tip in 22 languages. we have more than ten documents explaining what t tip is and in many other languages. the tools are there are for people to communicate about it. business to communicate about it. i think it's true that european companies were not used to have to do any work in favor of trade agreements. they are awakening, but it's a slow progress. and in an environment where companies are cutting budgets for government affairs and that kind of thing. it's not clear if a project like t tip doesn't have an impact on your bottom line in the next four quarters, what do you do? you got to put any dime on the table. no, it's the decision that have to do with it and the government and say it's up to the governments to do it.
i think if you look at the concerns in germany and other countries, you'll hear concerns about consumer rights. t tip or big american companies are seen as a danger to our good rules, a good consumer protection, workers rights, environmental standards and even democracy. scratching my head, we've said all along, we'll not negotiate down our rules, standards, labor protection or consumer protection. we've said all along we will not negotiate data protection rules as such in ttip and still, ttip is seen as this trojan horse that will bring all these bad things for the u.s. i'm sure we can do more. commissioner has doing much more.
we'll keep on doing more, there will be a limit to what with we can do as long as negotiations haven't progressed out. part of the difficulties we confront is as long as it's not negotiated, you can sell a concept. you can say we aim to do this and not do this, but for the rest, give us a bit of time and we need to work on the negotiation, get them done and then sell them. that's why companies are waiting on the sideline. i want you to agree on some things, then i'll know to what extent you can support. also important to remember that ttip was launched in a period where there was stronger trade position than there is today. i mean, 09/14, two european
commissioners was the president of the european commission was very forceful in pursuing a trade agenda. ttip is part of an agenda. it's not a single project. india in the soil countries. you crane. african countries, we're very am birth certificate trade policy agenda across the world and probably launched negotiations with australia and new zealand, with mexico and chile, so, ttp is part of a very big agenda and there was strong support for that agenda. i believe there still is. public opinion is much more critical about this project, which is called ttip. >> so, ted, your observations on political and thought leadership dealing with public opinions.
>> a couple of things, i would like to reenforce damien's point about what the commission has been doing on the transparency front. so, i think there are lots of thing that is are swirling around in public opinion, but one of the arguments you hear very of the is that all of this is being done in secret. that corporations have outside influence and that ordinary people don't know what's going on and can't effect it. in context of how the u.s. has handled its trade negotiation strategy, that has a lot of legitimacy. united states has done negotiations in secret. all countries have. you look at the advisory committee structure. it's heavily weighted towards the interests of business and so, there's a lot of that critique that i think has considerable legitimacy and as these trade agreements move into areas of as they do more and more into areas of consumer and environmental regulations, that becomes a lot more questionable. when you are talking about trade
offs on tariffs that are profit loss issues maybe makes more sense to handle negotiations that way, but in these new areas, there are much broader public interests affected by these. i've been really encouraged by what i've seen the commission doing. it will be interesting to see how that plays out when the negotiations get further along and you're trading offers, but they've been putting its offers out there in a very public way, quite transparent about everything it's doing. trying to tackle very head on the criticism of secrecy. i'm hoping the united states will follow that lead. it will be a big change in direction. for the united states. it's one to have kind of unrelated comments on the united states. you drill down, one o f the very interesting things, this gets to the disconnect between the public and congress. congress right now, you've got a democratic party that is almost united in opposition to continuing on trade and a republican party that's quite supportive. even the tea party elements who
i think a lot of us thought well maybe for nationalists or antigovernment grounds are going to be suspicious, but generally, have been fairly supportive. but you drill down into the poll, democrats actually, democratic voters are much more favorable to trade now than republican voters are. i think part of that is the kind of changing demographic of democratic voters. a lot more young voters. a lot more multiethnic, hispanic, new immigrants who have become u.s. citizen voters and the parties haven't caught up with where their electorate is at, in a way that this is likely to be handled when it comes to the congress.béhk >> i think that is an important point. that really does need to be emphasized. the data shows now the democrats by and large, people identify themselves as democrats. support trade to a greater degree than those who identify themselves as republicans. quite a reversal and as he says, we really, the parties really haven't caught up with that. it's going to be interesting to see, particularly how the democrats react to this as their
younger voters and entrepreneurial voters socially, social media voter, come to the fore, if they're going to change their position on the trade agreements. >> okay. well, let's shift and say a few words about the role of elections themselves. in influencing the whole domestic political environment. damien, this morning, sean donnelly mentioned three elections upcoming in europe that may have some influence. the german general election, the french presidential election and then the referendum in the e.u. on whether they should stay in the eu. would you offer some thoughts on that? >> congressman first in politics, happy to take that one. it's clear that elections in large member states have more influence on what we do overall and the projects we pursue and
the pace at which we pursue those projects. i would think the british will ask us to keep on moving on ttip and not slow down. when we listened to the president when he was here, he said, you know, it's very important for europe and united states to move on. let's get it done quickly. >> overall, if you look at it, we will say we want a good deal and substance will prevail over speed. >> the elections themselves are not likely to influence that? >> elections do have an impact on your ability to move. when we had elections, we've seen this during the midterm elections in the run up to if
midterm elections, more nervous and that's on the side where you have elections to move on sensitive issues, that's for sure. how it will play out is too early to say. i think i would agree, tt being a popular topic and that is a topic of dinner table conversations in families across france, germany and the uk. yes, it will be a topic in the campaign, but impact that will be, that will be having on the negotiations, it's too early to tell. basically, we really tried to close with the obama administration. we think it's technically possible, difficult. yes. i agree. but feasible and but we need to step up the work in all areas for sure on both sides. it's still doable. it's still doable and then you would be done when the election campaign starts in france and
then in the other countries. in u.k., it hasn't been decided yet, so we'll see. so, yes, they have an impact. of course. what impact i think is pretty mature. i would say for next year, it should only incentivise us to move ahead and try to conclude, but substance will have to prevail over speed. that's for sure. european commission will not try to rush to a deal with the obama administration if he doesn't feel the deal is good for europe. i'm sure you will hear the same, yes, we'll try to get it done. it has to be a good and ambitious deal and so -- >> ted, ready or not, we have an election coming up in this country and a little more than a year. both congressional and presidential. last i checked, none of the leading candidates of either party seemed to be much inclined toward trade liberalization. how do you read the implications
of the u.s. election for what might happen in t tip? >> the timing is difficult. i'm going to curb a little bit from my lunchtime conversation, i apologize if i steal any of his thunder here. but we were talking a bt this, that you do, i mean the problem in the u.s. perspective is that the majority for trade is so narrow as jim mentioned. handful of votes and so, think of when it comes to the ttp vote. i know this is about ttip, but congress has got to be able to deal with ttp before we can get to the question of whether ttip can pass. so there isn't all that much room for error. if i look at these things historically, my read is that the gio political importance of an agreement like ttp or ttip,
if it's concluded is so enormous that even some of those who are skeptical in congress are inclined to support it because saying now at that stage is such a blow to an important ally. t tip to the european nations that are the closest american allies. i should throw in canada and mexico, so at the end of the day, congress will support this, but the timing is really difficult. the obama administration would like to do this in the spring. if we're still in a situation in the spring where donald trump has done well in the first couple of primaries, obviously secretary clinton is now come out against tpp. rather awkwardly, i think, given her historic position on this. but she has and so, that's going to make it harder for some democrats. i think there's the possibility of the election year pushing all of this back even farther. that the tpp vote gets knocked back to the lame duck or maybe to a new administration and t
tip gets pushed farther back. at the end of the day, i believe that congress will pass both agreements assuming t tip will be negotiated, but it's a problem in terms of timing. certainly it's a problem in terms of timing. >> you had the opportunity to get up close and personal with the electorate 11 times? >> 11 times. >> yeah. >> you've been through some of these conflicts before. what's it look like to you? >> trade was never that popular even in arizona despite 22 years of trying to educate my constituents about the value of trade agreements, it was never that popular. i call it the colby mantra and that is that the benefits of tradezéo are wide and diffuse we the benefits for protectionism are narrowed and focused so guess who wins on those? it's always the people who have a very narrowed, focused agenda on that and that's why trade has become such a difficult political issue. the situation looking into this next year is as cloudy for trade as it is for the presidential
elections, but i will make one prediction that i think with absolute certainty and that is that if the two nominees for president of the major parties are bernie sanders and donald trump, you can probably take your trade agenda and put it in the bottom drawer with some mothballs and forget0 for the next four years after that. but that's probably not likely to happen. but i do think it's likely that secretary -- if secretary clinton continues to be the lead in the polls, it looks like she's going to be the nominee, i think the democrats will have to feel they can't vote on ttp next year and it pushes the whole trailed agreement back. i've said this before and even without that it's unlikely that ttip can possibly be done and virtually impossible that it could be voted on before the next election. i'm beginning to think it's going to be very difficult for ttp to be voted on before the
next election. maybe in a lame duck, but ttip can't be even completed before that time, so it's going to be up to the next administration and we just don't know who that's going to be and exactly what point approach they will take if it is a president clinton, she would undoubtedly want to reconsider certain items in the negotiations. so, in some sense you kind of start over at the beginning there. but this is not going to be an easy -- this is not going to be easy on either side of the house and senate or either side politically. >> can i add one thing, dan, you know, if it does get kicked over and everybody said it gets kicked under the next president and that's enormous uncertainty. but you do realize there's enormous pressure to continue on the agenda that your predecessor ran on. and president obama ran on an anti-trade platform. it took him a while. he didn't take to it immediately. but he was skeptical about trade
and wanted to renegotiate nafta but wanted to, you know, really kind of go back and tear the thing up to becoming the president who is presiding over the most ambitious set of trade liberalizations in two decades now, so i do think there's a lot of pressure to kind of stick with the program on trade. >> it's been observed that president obama made a quick pivot in the direction of trade agreements, faked out his own team, and when went into to kind of try to score with the republicans and it's a very interesting situation. i hope he -- i hope he -- >> i believe he did it for good reasons and it took a little while but i do think there's, you know, there's just a lot of pressure on trade to keep moving forward in one way or another. >> one of the issues that came up in a panel this morning was the federalism issues in the united states, the federal government versus state and local governments and how they handle certain issues and that's also potential concern in europe.
ted, do you have any thoughts? is the united states going to have to knock heads and are we going to have to get various levels of government to coordinate a little better in order to make ttip what it should be? >> well, i mean, the answer is yes. but what i personally would like to see is a complete reformulation of the role of states in u.s. trade policy. i mentioned the advisory structure that is weighted so heavily towards corporate interests and there's a state government advisory committee but it's been morriebund for most of its history, and most states now are very actively in the investment promotion game. a lot of large cities are. they're increasingly looking at what their export opportunities are, you know, to plug a competitor. if you look at the work that brookings is doing under its global cities initiatives by identifying export opportunities for large municipalities, state and local governments in the
united states are waking up to the importance of international trade policy for their economic interests. when we talk from the federal level it's about getting the states to open up their procurement markets which i think should be done, but i think the way to do that is to bring the states much more deeply into the formulation of trade policy and the u.s. government says we're going to do these things you want on the investment front and the export promotion front and in exchange you got to do some stuff for us including finally getting serious about opening up your procurement markets or taking care of tax problems where they exist and they discourage foreign investment so i would like to see a much, much closer ongoing working relationship between state and local governments and the federal government. canadians have done it as well with their prove vininces and t are ten prove vininces and we'r states. >> i'd like to see that happen but it didn't going to happen. states aren't going to open up themselves on procurement. it's really interesting as you said states all have these -- many of them have foreign trade
offices in london and tokyo and elsewhere. they take trade missions. the governor takes trade missions with business people. they promote their exports. they do all this kind of thing. they try to bring investments but they are narrow on some of the tax issues and certainly on the procurement issues where they tend to be very locally focused on this in protecting and buy america is not only buy america it's buy california or it's buy oakland, you know, and they have these kinds of provisions in there. so, i think it's -- it's kind of a dual head, a dual look at the thing and i don't think it's going to -- i just don't think they're going to get there on procurement but i wish we could. it's a big headache for our european friends to see that we have 50 different approaches to things but we can now say you got 28 of them now that you have to deal with over there. so, it's -- in a sense it's a little bit the same. >> tell us a little bit about
the 28 frictions and the degree -- the competencies between the national governments and brussels now. >> right. well, as someone said earlier today in a number of areas european single market is more unified. more harmonized than u.s. depending on the services sector that you look at or the good sector you look at. but from the european perspective what states have been doing to avoid the discrimination that they have put in place is an issue that we need to address in the negotiations. that's clearly a request from our side in the negotiation that we need to address that at the state level, at federal level. that's part of the market access discussions. what we will get is a matter for the negotiations. i will see where those discussions will take us. but it's more than that.
and there it goes both ways. the rules, regulations adopted at state level or member state level are a reason of concern for companies who wish to do trade across the atlantic. and we are trying as much as possible to look into this. it's true that our canadian friends the provinces were actually in the room where we are negotiating procurement. and so that was easier, of course, the transaction cost is easier because you have ten prove prove vinces or 11 with the territories and it's not up to us to say what the u.s. should do but that's a concern we've expressed. if you look at regulated professions, there are activities, architects, engineers, maybe accountants, lawyers at the state level and if we want to facilitate movement of lawyers or accountants or architects we
need to have the state and the member-state talk to each other or talk via proxies or people that will represent the member states like we do at the european commission in order to find more solutions for mutual recognition of professional qualification. that's an area that we need to look at very much and it's clear that we could not from european perspective accept a deal that would impose obligations on european institutions and member states and even a subnational member states and nothing at the subfederal level in the united states, that would not be a balanced agreement. if you look at the center of gravity of procurement markets obviously there's much more money being procured at the member state and the yoeuropean level and we need to keep it in perspective as well. but that will be part of the balance and how people in europe will look at this. i'm not saying it's easy. but we need to address this. >> okay. >> we only have one real good
opportunity to improve this relationship and it's ttip and we've been looking at it for 20 years and trying to do low-hanging fruits and sector-specific stuff. but these haven't had a significant influence on our relationship. now is the time to improve it. so, we need to take the time to do it. >> okay. i've been a little bit surprised with evolution of financial services as they are discussed in ttip or not discussed in ttip, you know, with europe and the united states being the two largest providers of financial services in the world, some sort of harmonization might make sense and i think that's been the european position. if i understand treasury secretary liu he's not at all been enthused about having discussions with the nasty europeans -- i'm putting words in his mouth. but at