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tv   Gregg v. Georgia and the Death Penalty  CSPAN  February 14, 2016 2:00pm-3:51pm EST

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how to better meet wildlife needs. system way, the refuge is helping to ensure that the remain webs of life intact for future generations. >> this year marks the 130th annual meeting of the american historical association. american history tv was in atlanta for their congress -- for their conference. up next, and expiration of the death penalty in america, specifically the >> the georgia
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case that confirmed the constitutionality of capital punishment. this program is about two hours. >> welcome, everyone to today's roundtable discussion on greg versus georgia. everyone to to ask make sure your cell phones are turned off or placed in silent mode. we will be hearing from each of our five analysts today. i'm the assistant professional historytem professor of and we have an exceptional lineup of speakers who will help us understand the social, and jurisprudential considerations that existed before and during and after the supreme court's decision in greg versus georgia which we authorized the use of the death penalty after a four-year moratorium imposed on
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it in 1972. we stand now add an interesting moment for the history of the death penalty. support stands at 61 percent, which is roughly where it stood 40 years ago. just in 1976, states had completed a process of undertaking major reform efforts to overcome the barriers to execution the united states cream court had placed in front of them in 1972 case. ruledt case, the justices tote processes of sentencing death were prone to arbitrary outcomes and were unconstitutionally unfair. greg versus georgia served as one of the test cases for the solutions states had come up with and the courts approval of the capital sentencing statute inaugurated a new year a and the history of the american death
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penalty. since then, thousands of americans have been sentenced to death and nearly 1500 have been executed. in the last 15d years. support for the death penalty peak in the 1990's when 80% of americans expressed support for it. it has been declining steadily since. the number of annual executions, meanwhile, has declined dramatically. some argue capital punishment is once again dying, that we are back where we were in the 1960's once again. participants in this roundtable discussion will explore the historical context of the decision and assess the role it legalayed in shaping the and political life of the death penalty in the early 20th centuries, a time when the fortunes of capital punishment have blacks and waned in america. some surprise when the
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decision was first announced. if the problem was arbitrariness, the clear solution was a return to an older model in which juries had no discretion over who should be sentenced to life for who should be sentenced to death. anyone convicted of capital murder in the 19th century would be given a death sentence automatically. after the court's ruling in the furman decision, the panel wrote -- without any exercise of discretion. 10 states, including north carolina gave the court exactly what they demanded, they discretion andr illuminated mandatory death sentences for those convicted of capital crime. this approach was our into the court for reasons that
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articulated in a decision that accompanied the greg decision. practically, the courts feared juries, knowing their guilty verdicts would mean death for the defendant they were sitting in judgment on would return to an older model of acquitting guilty murderers they did not the as gil -- as deserving of death. the court's decision was rooted in a philosophical commitment. it was worth the of authorizing a sentencing system that would be so fair that it would outlaw mercy which the courts granted on factors to intangible to write into a statute. mercy, the refusal to punish when one is entitled to, had to remain a response given the diverse realties of humankind we all shared, and that is capital defendants events. mandatory death penalty rules did not take into account those frailties. they instead treated all persons
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convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of death. david garland argued in theiring clear standards, court was working to distance capital punishment from its historical association with anti-black lynching. sentencing protocols and guidelines express the values of that wasss definitively absent in the lynchings that had plagued the country 100 years earlier. of lawlessspecter lynching underlay the court's decision, so did the specter of a technocratic state. the court gave its approval to statute created by states like georgia that preserve the capacity to be merciful but gave more guidance to the decision-making process. it approved guidance to guide
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juries of a defendant convicted of capital murder who want to die. the nature would differ from state to state and -- and reflect different priorities. juries would decide the punishment after a trial which followed the penalty phase after conviction. there, the jurors would be presented with contextual evidence they did not hear during the decision-making phase. contextual information about the defendants past. jurors would weigh the heinous notice against anything that was mitigated. the court ruled they could sentence the defendant to death. the goal was to give juries discretion, also giving
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the sentence some semblance of fairness. the court desire to have its cake and eat it too and consider them as unique individual failed. variables that should not matter like a race for victims who their homicide was punished by death or geography variables like the county in which a capital murder occurred continues to drive sentencing outcomes. this spawnedence has been franken steny and. toimately futile efforts make death sentences more fair and consistent. sot was articulated memorably by justice harry blackmun when he proclaimed after nearly 20 years that he would no longer tinker with the machinery of death. if greg failed to bring can
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sentence -- consistency, it succeeded in creating an unprecedented forum. the court may have sought to see but a space former death sentences resulting from the exercise of that it discretion also called public attention to the purpose of capital punishment in ways objective sentencing would not have. have the court allowed or required automatic death sentences for those convicted of murder, the active conviction would have masked the active condemnation. individual blameworthiness would only be implicit. guided discretion scenes made the death sentence elective, requiring a jury to essentially say to the defendant to say we know what we did, we know who
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you are, and you deserve to die. with gregg, each death sentence became a dramatic affirmation of free will and personal responsibility and moral blameworthiness. , this was and remains a distinguishing feature of contemporary capital punishment with these dramatic penalty phases that end with a judgment visited on a particular person. each of ourid, speakers is going to speak for about 15 minutes and then we will turn to the audience for questions and dialogue hopefully amongst the panelists as well. is the harryaker and lillian hastings research chair at the university of california at hastings school of law. prior to joining the hastings she practiced7,
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as a military defense attorney and military defense forces and completed her masters degree at hebrew university of jerusalem and her phd in the jurisprudence and social policy program where she studied as a full by -- fulbright scholar and taught at tel aviv university. her research focuses on the criminal justice system and examines policing, courtroom practices and broad policy decisions research and science perspectives. her methodology combines qualitative, qualitative and experimental tools. recent book is cheap on crime. bywas published last year the university of california press. it analyzes the effect of the financial crisis on california.
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she runs the california correctional crisis blog. please welcome her. [applause] afternoon, everybody. thank you for inviting us here to talk about this very important subject at a moment in time were a lot of changes brewing. there are lots of different stories we can tell about the death penalty and i'm sure there are quite a few of them being told here today. i'm going to tell one possible story which looks at what , especiallye gregg as anti-death penalty advocacy, a process that underwent change in the arguments for the death penalty in the efforts to attack since it has become shallower and shallower in their content and broader and broader in their public field. to the point where making very
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tollow arguments that appeal money. we are going to start talking about human rights, deterrence, innocence and all sorts of other focus thet i want to second part of my talk on the financial efforts to attack the death penalty since the great recession of 2008 and the recent developments that might or might not signal the end of the death penalty in the foreseeable future. fairly recently, the -- justice stevens was talking about the death penalty when writing a book review about american exceptionalism. he is quoting from a decision he authored in 1977. he said the death penalty differs from other punishment in its severity and finality. the action of the sovereign
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differs dramatically from any other legitimate state action. it is of vital importance to the defendant and community that any decision to impose a death penalty be and appear to be based on reason rather than caprice and emotion. i think this really tells you a lot about the reasons rather than emotions anti-death penalty advocates have tried to come up with. is valuable to keep in mind that the death penalty marks america as a fairly unique country. religious the only country in the industrialized west that maintains the death of the. when the death penalty was abolished in european countries, it was a top down move against public sentiment and fueled by human rights concerns. can we assume citizens agreed to -- to take power away that
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is so drastic, arguments such as those, in the early days of the american revolution, arguments like that were heard and spoken by people like benjamin rush and thomas jefferson. that went away and as danny mentioned the moment ago, the arguments in the first case that temporarily abolished the death -- what they mask the deathct that penalty would be inflicted upon people not just for homicide but for robbery, rape and all kinds of things, for the most part, targeting african-americans for non-homicide offenses. gregg sought to correct that. the efforts was pre-much decimated.
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this meant that now the new battleground in terms of ideas had to change. some people attribute part of the decision to an economic article published in 1975 in which he analyzed the effect and said every execution prevents eight homicides. that was in the supreme court's mind when they decided and it was the topic of conversation of time. several other people published articles trying to demolish the arguments, point being out fallacies in the methodology. scholarlyy the community for many years and then started to go away. what remains is to teams of economists. a methodologist conference and this has become the topic of arguments with
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people trying to say you can't include these variables. so there are all kinds of little nuances with how you play with the variables to the point that it is hard to come to an explicit conclusion whether the death penalty deters anything or not. penalty soe death much as life without parole or life with parole in a way that would a -- enable you to judge between different alternatives. nonetheless, activists have accepted this conclusion. americanomething the legal institute is backing and this is the assumption behind the whole thing that the argument has become irrelevant and we have to look to other elements to figure out whether to continue with it or not.
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another issue that became a issue of avenue is the racial discrimination. a study was published base on 2000 georgia cases. the race of the victim, more than the race of the perpetrator was a significant very able in the imposition of the death penalty. there was an effort to use the finding of this study to attack the death penalty in court. we can'tme court says really accept a general argument that there seems to be racial discrimination in its application. you, the petitioner, have two prove you have been sentenced to death for racial reasons. do things based on what the scientific findings say. it would be very difficult for a canh row inmate to say i
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prove the state was racist in my case. very difficult thing to prove, so that also proves fruitless. a new hope emerged with the emerging dna and the of innocence projects at universities when we started seeing a lot of these people on death row did not do it and we can show they did not do it fairly conclusively relying on afteric evidence for confronted with irrefutable evidence of wrongful conviction and wrongful executions in the to abolishr leading the death penalty. but even that did not seem to make a lot of headway in that leads to the later development that i would call tinkering with the machinery of death.
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efforts on current behalf of death row inmates focus on the technical aspects of the death penalty. should we give you three lethal injections, one lethal injection, what kind of chemical should we use? to which of these is more humane and which is more cool and unusual? thissome installments in machinery of death saga. some of the difficulties we had with european countries which manufacture the chemical use and executions have stopped next wording it to the united states knowing what we use it for and there has been an effort to local alternatives to the drugs culminating in a case from the summer in which the supreme court approved this new chemical for use.
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so there is a lot of effort along those lines and it is becoming technical and very much a way for a more personal and principled appeal. the interesting development is the fact that in the legislative and public arena, the debate inecially where i come from california has become a for the most part, financial. since the financial crisis in 2008, there's a new discourse surrounding the criminal process in this country. we talk about how many resources we are spending on trying, convict inc. and incarcerated and how much are we getting as a return on our investment? one thing anti-death penalty advocates have been trying to use to their benefit is the fact -- and this may be a surprise to many, that the death penalty is vastly more expensive than prison forple in
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life without parole. the reason is these were held and very restrictive conditions. mostly with the intense litigation death row inmates leave for years or decades after they are being sentenced. in california, we have not sentenced people for decades -- we of sentenced people to death but have not executed. for the most part, people have been dying on death row for natural reasons. the legislative office in california has calculated that if we were to end the death penalty and move these people to the general population, we would save $150 million a year. this was made in a campaign to penalty ande death the effort of activists there was to use the same logic many other states had used since the financial crisis to abolish the
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death penalty and it had been successful for a long time. seven the states abolished the death penalty since the financial crisis and many more are considering a moratoria. and not because people think it is unfair or racially discriminatory, they are just concerned about the expense. instructedn managers volunteers to avoid using the words barbaric, inhumane and cool. they suggest talk about cost, just talk about the money. -- volunteer cadre imputed included people on the fence about the death penalty but who felt the expense was inexcusable and would not lead to anything. the latest example of how far you can push this rhetoric is a recent case where a district court judge -- a fairly conservative judge in orange county, one of the major killer counties in the country and major supplier of death row inmates in california said the
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death penalty has become unconstitutional because of the delays in its application. the delays due to the efforts to this and it all adds up to a system that does not achieve any sort of attributive element and is hard on the victims families and they wait and wait. we really need to put an end to that. it is interesting to see people were able to make some headway with this argument, not only in the legislative effort. the problem with relying too much on the financial argument is that it relies on the flipside. the california district attorney association says let's make the death penalty faster and cheaper and that way, we are going to solve the problem. let's not give people too many free lawyers and the can execute
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more summarily and efficiently, very quickly. right now, the conversation revolves around the money and it's a precarious point. the people who are saying we can make this cheaper and more efficient -- interestingly, i have noticed a renaissance for the broader human rights arguments, but they are not eating made in retention is states. i will give you two examples and end with that. one is the debate in massachusetts after the bomber in the boston marathon was sentenced to death. he was sentenced in the federal system which retains the death penalty. the states when pulled about their opinion expressed great reservations saying we don't want to turn him into a martyr. in some ways, a return to the
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original argument made by people without the death penalty for a long time. another case saw a case in an arizona private prison murdered a prisoner while imprisoned in a fairly gruesome way and was sentenced to death. those inmates are both residents of the state of hawaii. in order to save money, the state of hawaii ships half of its inmates to do -- to the mainland. the state of hawaii banished the death penalty. now they say it is unfair that these folks who are residents of an abolitionist state worship to a retention is state against their will and are finding themselves subjected to this rule and unjust system because of a place they did not choose to be. more interesting these principled arguments are coming
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up from advocates living under and weitionist regime have to make the argument have as broad an argument possible because it's the only thing that been made in a few years. president obama says he personally finds the death penalty deeply troubling. one of his last act in office might include a pardon to federal inmates for doing time on death row. withat has anything to do local development in states gradually abolishing the death penalty, maybe rahm emanuel was right and we did not let serious crisis go to waste. thank you. [applause] >> our next speaker is paul kaplan. all caps on is an associate professor of criminal justice in the school of public affairs at
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san diego state university and the former president of the school of chronology and received his hd in criminology law and society from the university of california at irvine in 2007. -- dr. kaplanre worked on capital punishment cultural chronology and worked on sisi legal theory and comparative law. his book, ideological narratives and capital punishment was published in 2012. the creator of the art crime archive online. professor kaplan. [applause] youood afternoon and thank
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for organizing this panel. i'm happy to be here with these great colleagues. i want to talk not so much about the case for this panel but a predecessor of this case. i'm going to be talking about a case that turns out that i am arguing i think the court got it right in a big sense. this discussion is going to be about the metaphysical, the how the court makes metaphysical cases about reality. it creates a difficult album for the decider. it called the problem of judgment.
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the decision present the decider with a string of questions about complex ideas like in, causality, justice, power and the state, just to name a few. faceupreme court's about reflects this kind of metaphysical difficulty. the court invalidated the idea that judging life or death worthiness can only be understood in relation to the matter being judged itself. in this case, death or life, not in relation to rule. factdentify before the those characteristics of criminal homicide and their perpetrators, which call for the death penalty, and to express those characteristics in language that can be fairly understood and applied as a sentencing authority appeared to be tasks which are beyond present human capability."
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it is notsaid possible to construct rules or guiding discretion. said, no, no, we cannot have this arbitrariness. we must have rules, sort of validating the concept that there could be universal truth to which you could look in order to guide somebody's discretion. legal system has struggled mightily with this problem, as danny referred to earlier, producing a frankenstein's monster of contradictory jurists prudence, the kind of seesaws to world metaphysics with real world order that gives sentences and rejecting universality and self evident in this of death sentencing. hasg the way, the court tried to accommodate all of these issues presented by the problem of judgment and there is this string of cases that i
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don't need to rehearse. danny heard me talk about some of them and refer to some of them. that one vexing problem of judgment is that it becomes apparent in capital cases. states have, all statutes that list actors of aggravation and the judge is to consider. linen 1980nry versus nine says the decider is required to weighing give a theft to aggravation and chooseion before they life or death for the person. i am going to talk about that problem of judgment in relation to a really weird phenomenon called judicial override. indescribes the statutes florida, alabama and delaware, that authorize the judge --
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actually require the judge to make the final decision on death, the final sentence. in all the other capital states in this country, all 29 states that have a death sentence, it is a jury her determines if the guy gets life or death. in alabama, florida and delaware, the judge does it after a jury -- the judge does it. even if the jury decides 12-0 for life, the judge can sentence the person to death. and they do. they have done this regularly, .specially in alabama of all of the overrides in alabama since the statute appeared in 1776 or 1978 -- or 1778, i forget, i think there have been about 110 overrides. 90 of those were to death. almost all of these overrides are to death. what i'm going to give our
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examples of how judges do not satisfactorily contend with mitigation when overriding people to death. this is coming from a study a have done with some colleagues who reanalyzed all of these memos. when the judges do this, they why they arein overwriting the jury. so we analyzed all of those, about 200 something between the three states. i will focus on some examples of don't do what they are supposed to do, which is to weigh in and give effect to aggravation and mitigation. one of the things they do is overweighting aggravation. sometimes, they make the aggravation very heavy by doing things like describing how bad the defendant is. sometimes, the badness of the defendant overrides the
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possibility of mitigation. no them a, the judge makes it clear that the defendant is the own redemption by bringing aggravation in desk here, the that het's family claim has a good cart -- goodhearted -- clearlyence presented displayed that he is a bad boy to the bound and is evidenced by his tattoos. the defendant did not benefit at all from his bible studies and he certainly has not done any good works in the church. additionally, there is evidence that reflected the defendant was a dope dealer. he was dealing death, putting kids at risk. the defendant certainly was not a positive inflows or role model to his kids. he followed their mother and
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beat her in front of them. nevertheless, the court finds the defendant's love and devotion to his family and their love and devotion to him to be a nonstatutory mitigating circumstance. however, the court feels this should be given extremely minimal weight as the listed attribute are inconsistent with the nature of capital offense. the evidence of bad character presented in the discussion is in the discussion of aggravating factors and brought back in the discussion of mitigating factors , so overwhelming that, and not mitigatingghs the factors, but the effect it can have. another technique that these judges use is sometimes very suspicious logic to make the aggravation heavier. judgeseast two cases, engaged in some kind of rhetorical sleight of hand.
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one of the statutory aggravating as in all of these states is this. did the defendant have a previous capital conviction or some other final felony conviction? priorhe defendant have a conviction? treated, some judges cooccur in crimes as previous convictions. in alabama, there were two robberies in one event and the judge canted each murder as a conviction for each other's murder, making the aggravation very heavy. the other side of the coin is mitigating -- is under waiting mitigation. found that have people sometimes convert aggravation to mitigation. so converting mitigation to the cider and turp -- to the decider interpreting mitigation. henry's mental retardation and
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history of abuse is a double is sorted. -- double edged sword. alabama, this defendant was convicted of robbing and murdering an elderly woman and her daughter, her granddaughter. the jury recommended life by votes of 12-0 and 9-3 at two trials. at both cases, unanimous for life here according to the judge, the facts in this case revealed that the defendant was mentally ill and the judge devoted a lot of time discussing the person's bizarre behavior, strangely looking his fingers, claiming it was blood, playing with rocks and referring to them as family members, all of which of this judge be live to be manipulation as he believed the crime was an attempt to set up an insanity defense after he committed the robbery and murder. it is clear to the effect that
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the bizarre behavior of the defendant the proceeded the killings was a manipulative attempt to create a defense of insanity." this judge negated significant evidence of mental problems come including some evidence of sick yet or,aking claiming the defendant was in a few state in a suicide attempt. the judge decided the emotional distress was "produced by the defendant's own personality," q by finding this to be a or -- this judge completely converted this mitigation of mental illness into aggravation. another thing that these judges , unweight their decision, a common means to sidestep mitigation is reliance
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on individual response billion choice. in one case, the judge mitigates drug use, frames the use of drugs strictly as choice. killingsworth, the defendant, presented testimony that he voluntarily started using drugs and marijuana at 16. his parents also used to drugs and alcohol to the extent that the use of drugs and alcohol negative duly -- negatively affected his life, the court it was voluntary. regardless of what his parents did, killingsworth chose to take drugs and drink alcohol. as previously discussed, killingsworth was ordered not to use drugs and i'll call while on probation, yet he still chose to do so. and recall while on
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probation, he still chose to do so. ordered not to use drugs and alcohol while on her, yet he still chose to do so. there is a cynicism or ignorance perhaps because there is research that shows a strong connection between what parents did and later substance-abuse by children. there is another section i will talk about in terms of a zero-sum game. rather than read those, i will explain its i can get to my conclusion on time. another thing these judges due weight mitigation is to treat the question of this thing between aggravation and mitigation as is zero-sum game. if you guys the defendant life without parole, that is a win and a loss for the victims family. which obviously is not.
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the guy is not getting set free. he is not getting, you know, is not walking at a prison ever. but they see this as a zero-sum game and they talk about that to some extent in many of their orders. why does this happen? it is significant to know that this happens and innocents making a record of overwrite is something that i wanted to do today. i actually spoke with my colleagues before, people who know a lot about the death penalty. it's actually significant just to say it out loud. are states,there especially alabama, where judges are overturning jury sentences, jury recommendations of life and giving deathly death death sentences -- death sentences is disproportionate to minorities. basically, the argument i make in this paper is that there is pain, thethat
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metaphysical power pain is too much. much of the discussion in these memos includes very powerful descriptions, very intense descriptions of suffering of the victim of the murder. thishat you see is impressionistic sense of these memos when you read them, that they judges can't get over it. they can't get over the blood and guts. they can't get past the idea that this person experienced pain. so therefore mitigation doesn't happen. like, i don't care what kind of mitigation you present, this person suffered. this is the essence of the overall impression of these memos when you take them in total. point, make the final the whole point of this paper is that come in the way that it can except to the topic, is that all of that tinkering with the machinery of death, all of those cases, starting with gregg and
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all these many cases, don't work. they don't work. death sentences are still utterly arbitrary. they are just as arbitrary and capricious as their -- as they ever were. and judicial override is perhaps one small scandalous example. i will end by saying it appears that the court, what they said in the golf, is right. it is beyond human capability to come up with roles that are fair. [applause] >> our third speaker today is evan manda repaired he is the chairperson of the department of criminal justice at john jay key mini. he is the author of three novels and three works of nonfiction, including most recently a wild justice, death and resurrection of capital justice in america, a court's account of the behavior during the 1960's and
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the 1970's. professor manner he has both his bachelor's just -- besser's degree and his juris doctor's degree from harvard university. thank you. [applause] dr. manderie: thank you. in the course of writing my book, it took me a lot longer than i ever expected. i probably wouldn't have done it if i understood how long it would take 10 but over those five years, i got to meet and speak with almost all of the law clerks who were present at the time in 1972 and 1976 when furman and greg were decided. and all the lawyers who litigated the cases for the also legal defense fund worked on brown another civil rights landmark cases that you already about.
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other than having children, the most rewarding thing i got to do. what is significant for ordinary people who are passionate about the stuff, this is what i would say. gregg had been decided by the justices at the end of their careers, they would have been 6-3 decisions, possibly 7-2 in one of them, overturning the death penalty is unconstitutional. onchronology and personnel the court is to how we got to the undeniably irrational position where we are at today. term,urt in the 1971-1972 ira and white -- byron white led the nfl in rushing while he was also a rhodes scholar. doesn't you like that is going to be duplicated anytime soon. but he had an idiosyncratic
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vision on the death penalty. he felt it wasn't used enough. in 1971, when they initially -- whites vote was up for grabs at the conference where they first conference the case. he said he was going to vote to overturn the death penalty and then retracted his vote. bizarres a lot of uncertainties surrounding what his position was, including a real conference where they discussed what his position was with him in the room and he refused to clarify. but it's a friday afternoon in early june in 1972 where potter stewart went to byron white's office and stewart basically changed his position on the death penalty, not widely reported, but stewart had a moralistic position on the deathbed -- the death penalty. he felt it treated people as a
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means to an end. he was going to issue two or three sentence opinion saying that it was immoral and perhaps cruel and unusual punishment. but quite did not have a moralistic position on the death penalty. in a compromise muster a it modified his position to where it focused on arbitrariness. furman is important, if you don't already know this, it makes no sense to talk about furman. furman's nine separate opinions, a 5-4 decision, and each geordie opinion -- and each majority opinion. intellectually distinct opinions with no clear consensus. but a lot of people summarize furman based on what stewart road, which was that the problem is arbitrariness and it was cruel, that the death sentence was cruel and unusual, in the way that being struck by lightning was cruel and unusual. thatone on the court said
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was the end of the death penalty in america. how could it be that a man who spent his life working in the most isolated job, spending his weekend at chevy chase country club playing golf in a rich suburb of washington, d.c., could fail to have his finger on the pulse of -- of society. with aes risk bonded backlash of death penalty statutes. when the court necessarily confronted these cases four years later with one significant personnel change, john paul ,tevens had come on the court the case was effectively decided by potter stewart, who had made this compromise, lewis powell and john paul stevens, all of whom, especially stewart and
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how, harbored a substantial dislike and really didn't respect berger. if you have ever read "the palpable how is much the account was and how much the justices and their clerks really thought dimly of berger. so it was a little bit of a power-play and a little bit of working out their cognitive and -- cognizant dissidents. stewart in his mind was already against the death penalty. stevens says that he is. powell at the end of his career, which is surely after mccluskey versus cap frustratingly, said that he regretted his vote on death sentences. i don't know if it was that he hadn't fully formed his view or didn't feel he could express it.
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is immoral.nk it at this lunch at a restaurant, they split the baby. basically, over the course of those two hours, decided, said the future of american jurisprudence on the death penalty, which is guided by two fundamentally incompatible bedrock principles. a nonarbitrary death penalty is nonconstitutional. and that it was the model penal formulation that you have bifurcated trials with a guilt phase and a sentencing phase and that death penalty eligibility would be decided by aggravating factors. herbert wechsler was himself an opponent of the death penalty. whatever their motivations for
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getting to that point, that explicit commitment to arbitrariness is an empirical question. talking to striking everyone in reading through this. have was, as you might expected, you would imagine a lot of analysis and debate over whether the model penal code was a meaningful check on arbitrariness. and there was almost none. and stewart, powell, stevens were really concerned about, the trick of, as it became to be known, was that the mende story -- mandatory statutes be thrown out. they all felt that those went too far. and then you have this really irreconcilable difference between this requirement of non-arbitrariness, which demands that life cases be treated like, and this requirement of nonmandatory nest which treats and demands that individual cases be treated individually, a dichotomy that scalia says that attention in the same way
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between the access and the allies in world war ii. cann't know that anyone really reconcile these differences, if you take my death penalty class. i will try to go to extremes to do it. it is very difficult. we do literally have a president, which is the death constitutional if and only if it is nonarbitrary. and that non-arbitrariness is a penaled by the georgi code model. i agree with everything that was said before. but it is strike in that litigation sins, which has focused more on restricting the scope of the death penalty applicability is that there hasn't been any case taken very seriously this empirical question whether arbitrariness has been curtailed. and for those interested in monday morning quarterbacking, this would be the saturday evening court are backing about what the abolitionist community
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should do right now. there is a historical moment, least thet possibility that there are five votes on the court right now to overturn the death penalty with anthony kennedy being the possible fifth third and then talking about the argument -- possible fifth. and then talking about the argument that the trend is against the death penalty. enough forobably kennedy to hang his hat on. thedon't tell me for intellectual dishonest argument. the intellectually honest or unit it would be that any arbitrariness in capital hasn'ting before 1970 even slightly been curtailed. .he evidence of racism profound race a of victim effect. it is geographically arbitrary probably more profound than it
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required in 1972. and the effect of economics in class, it's not even discussed whether the death penalty is arbitrary in those terms. people talk about quality representation. what it comes down to, it is just as effectively random whether or not if you are a murderer, you commit a crime in a death penalty state in one of a handful of counties where there is an aggressive pro-death penalty prosecutor and you happen to kill a white person. that would pretty much x plane all of the death penalty sentencing. -- that would pre-much explain all of the death penalty sentencing. it is a biggie whether or not to push it to kennedy right now. so everybody understands the stakes, if you go in euros, probably the supreme court doesn't hear another case for 40 years or so. on the other hand, the question
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is whether that would happen and whether the case would be worthwhile. i look forward to continuing that later. thank you very much. [applause] >> all right, at our next speaker is sarah mayeux. a phd candidate in history at stanford university. her dissertation, "the american legal profession and the problem of the indigent accused in the 20th century" draws on seriously untapped archives. after completing law school at stanford, she clerked for judge martha as present on the ninth brison on theha s burroughs and
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ninth court of appeals. [applause] ms. mayeux: thank you for inviting me. i am working on the history of defense lawyers. the fact that strickland are pretty brutal. just a few months after the supreme court handed down gregg, david leroy washington launched of attacksek frenzy and murders. when politicians try on public fears of crime, these are like the poster type frames -- type crimes. although washington had no criminal history before this,
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the reason for his crimes became industry. washington would soon find himself one of the first defendant sentenced to death under florida's new greg-approved sentencing scheme. he was the seventh person to be executed in florida after gregg. after executed in 1984 the united states supreme court rejected his final constitutional challenge to his sentence. challenge the not death penalty itself as unconstitutional, which would have been a smart thing to do just after gregg. hisrgued that court-appointed lawyer had shirked his duties here in i shirked his-- duties. i should note that the supreme court rejected his claim but there was a lot to the claim. his lawyer did not take a lot of basic steps to prepared for -- to prepare for the sentencing hearing. he did not request a presentence
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investigation or a psych evaluation. he did not investigate or provide any character witnesses. he did not even prepare a sentencing memo to the judge. these are all things for lawyers that are pretty basic steps when you have a capital client. but the lawyer said i had a hopeless feeling i can honestly say i don't know that i felt there was anything which i could do which was going to save david washington from his fate. i am getting this from a recent article that looked back at the record and the justices papers in this case. and there's no question of washington's guilt in the murders. he gave a lengthy confession. he played guilty to the murders. but there was a real chance that a different lawyer might have convinced the court not to impose the death penalty. all the supreme court did not the case still is the governing doctrine for those
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types of claims, not only in capital cases, but in all criminal cases, although for various reasons, you see these claims quite a lot in capital cases. if you take -- if you trace the ,ath from gregg to strickland you see kind of this arc or this theme of procedural is on that permeates the american legal tradition, particularly the 20th century legal tradition. in the 1970's, the supreme court justices were fleetingly willing to entertain capital punishment itself. by the 1980's, strickland suggest they had come to a more comfortable position, which was substituting receives real text for moral quandaries. itself, thisegg effort to reduce the death penalty to a series of procedural requirements is that i just categorically banning it or confronting kind of the moral issue at stake. thatesult of the shift is
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come after strickland, you see all kinds of challenges to death sentences funneled through ineffective differences and counsel claims. basic --llenges to the are difficult to win can if you make it about my lawyer failed to do x, y or z, that can transform it into a claim. two visitors "ineffective assistance can be useful because they allow you to present claims that would otherwise be barred studies have shown that, if you look at federal hideous litigation in capital cases, these are state, death row prisoners who come into federal court to try to collaterally challenge the capital sentence on federal constitutional grounds, in those cases, 80 1% involve a claim of ineffective assistance of counsel. atther counsel that looked
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state court proceedings, where a state court reversed a state capital sentence found that ineffective assistance of counsel was the basis for reversal in 37% of the reversals. that is not a majority or the most common reason why these cases get reversed. if you are on death row and you are challenging your sentence, you are probably going to make some kind of ineffective assistance claims. i'm not saying that these don't have merit and a lot of times they do. that this became the major funneled through which the death penalty gets litigated in appellate court after strickland. -- but inland in self strickland itself, there was a fundamental option. the court upheld washington's sentence and denied his ineffective assistance of counsel claim. it agreed with the court's analysis of ineffective assistance of counsel issue, but defended from the desperate dissented from the outcome. hero, in his view, the death
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penalty was constitutionally for been in all cases and he would have vacated the sentence on that basis. brennan and marshall dissented on this basis. in almost two dozen cases over the years, in what some have over thesilent vigil death penalty. anytime a capital case came to the court, regardless of what the actual legal issue was, if they were being asked to decide, defenseld write this saying i think the defense penalty is in all cases cruel and unusual despair. but there is a footnote in strickland where he criticizes not only the court's jurisprudence after gregg, but also its behavior. the court developed all of these procedural requirements to ,liminate the rationality whether to take her specular life, but contended that the court's specified procedures were unequal to the task.
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there was this rising tide of last-minute applications for a stay of execution to the -- to the supreme court. then there would be this flurry of expedited elevations on the court and emotional back-and-forth between the justices. we still see this today anytime there is a looming execution. you get this last-minute flurry of appeals all the way up to the highest court on any kind of grounds that the lawyers can think of. , you cann, i think kind of sense that he thought this whole process was kind of unseemly. he wrote, "it is difficult to believe that the decision whether to put an individual to death generates any less emotional pressure among juries, trial judges and appellate courts than it does among members of this court." the supremeds, court, only reading of these cases through records and legal arguments, if even they get
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sucked into this heated emotional back-and-forth in or can you imagine the average jury is doing seeing the defendant in the courtroom, seeing pictures of the crime scene and all of that? so brennan was really questioning some of of what my co-panelists have been questioning, whether it is possible for any human institution to rationalize west inherently an emotional set of -- rationalize what is inherently an emotional set of circumstances. many years later, justice o'connor herself suggested that the ineffective assistance of counsel in strickland was probably too strict and probably a consensus that most lawyers and scholars would agree with. so this charts a retreat to procedural is a, 40 years afterg
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and someter gregg suggest that justice is now wish to return to a more jurisprudence of abolition. down ineme court handed which a 5-4 majority rejected an to oklahoma'snt lethal injection. it was suggested that the death penalty itself likely now constitutes cruel and unusual punishment. so he doesn't say that it does but likely. for the first time, you have a sitting justice echoing justice when he wrote, even eight years after greg, that theg to insist death penalty is cruel and unusual punishment.
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i do think we are in a moment of scholarly and popular frustration with procedural is a -- proceduralism. it drives a lot of recent history, skewing the history of 20th century liberalism. we worry that we might throw out that kind of liberal baby with the procedural list bathwater. i think it might be healthy to return to a more straight home -- straight forward, less convoluted way of contract just of confronting not only the --th penalty but since he's but sentencing. can we enact punishment because we have checked all the right checkmarks and have your lawyer is done next, y, and z. confronthave to whether we should be doing this at all. [applause]
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>> our final suspect -- our final speaker today is dr. reeder. her research focuses on prisoners and prisoners right. s. her book will be published in by yale university press. dr. reeder. [applause] reeder: thanks. it is an honor to be here today. i'm kind of glad i get the last
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word. [laughter] until we have a conversation. i am going to step back. a lot of my research focuses on prisons and prisoners rights. i'm going to step back from the and look at the broader context of punishment more broadly in the united states at that time. by doingoping that that, thinking about what was going on in that brought her moment of reform, that will help us think about the broader reform that seemed to be percolating today. i will start by describing what was going on in 1972, when the supreme court decided ferment and at least -- furman and at least temporarily suspended the death penalty in the united states. i'll talk about four moments
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that were significant. george jackson had written a book and people thought of him like malcolm x. he attempted to escape from prison and he was shot to death. it created this moment of what is going on? it was a culmination of a lot of violence, racially-charge and violence in the california prison. two weeks later, prisoners in attica rioted. they killed more than 30 prisoners and guards. those two events on the other side of the country were at the center of a national conversation about what was going on in our prisons that was very much involved in it knows what that something was really wrong.
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that prisoners were being terribly mistreated and that is why there were these moments of violence. -- at the same time, this and what can we do to prevent this. book "struggle for justice," written by academics and published by a quicker organization. explicitly arguing for interim staff, especially chain -- interim steps, especially sentencing. widespread a claim. 1971, right before furman is decided, the stanford experiment
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in which they assigned middle-class white men in the 20's to be either prisoners or atrds and put them in a lab stanford university and, within a few days, they were horribly abusing each other. the guards had put their peers closets, making them do callis until they could barely breathe anymore, and they -- do calisthenics until they could barely breathe anymore, and he had to stop the experiment. there was widespread conversation on this. it was a good example on how, even beyond how arbitrary race is in the criminal justice system, there was an inherent brutality to it. and there was conversation about ferment in the 1970's. so that is the state in which furman gets decided in 1972. and then there is a period that parallels where there's really excitement about the excitement for real change.
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the death penalty has been and there is litigation throughout state prisons across the united states . by the late 1970's, there were more than 8000 prisoner lawsuits sentences of confinement. legislatures started considering changing sentences. i think people generally felt excited and i period, that there was real change. producederiments heightened protections on when anyone could participate in take spearman's, including prisoners, which created more safeguards. in 1976, it becomes clear that these reforms are not sticking.
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california, maine, indiana passed in the first was after gregg was decided. sense as much longer and shifted the balance of power in the criminal justice system. as the death penalty was reinstated, incarceration rates began a steady climb. states held -- state started building your prisons. building newrted prisons. they were building much harsher prisons, institutionalizing longer solitary confinement in that system. the thing i am especially interested in is what happened between 1972, when there was all this hope and sense that perhaps we really could reform the
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prison system, and 1976, where we began to have a sense that all the forms that reforms we to thatet in the 1980's -- all the reforms were not sticking and in the 1980's when things were really worse. one explanation is, well, there are alternate consequences to reform. and the report for how we should dramatically change sentencing in the united states warned of the menace of good intentions. they warned we did have his good intentioned reforms but they could backfire. others describe a sickle: between reforms that are conscious, morally oriented and the convenience of institutions that just have to operate day-to-day. reason theory and criminology two about how the pendulum swings back and forth between these trends.
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more recently, there has been a state of criticism that liberals are responsible. suggesting that liberals and african-americans compromise too much. but when we situate the death penalty in the broader context of reform of all kinds of punishment, from how long prisoners are sentenced to how they are treated in prison, that was part of the conversation in the 19 scented that 1970's, we see three other factors in the failure reforms to stick in the way people had hoped. transparency, refinement over reforms, and
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incorporating the voices of the frontline -- from my law enforcement officials. so i will talk in little bit about the means. one really important thing is that, throughout the reform efforts, heart of why there was so much attention was there were had been these dramatic moments. people had a really good sense of what had gone wrong. reforms went along, there wasn't that kind of transparency of understanding what was going on built into the reform. passede states sentencing laws, the supreme court ordered changes to where the -- to the way the death penalty was imposed. advocates have done an amazing job over the last 40 years building a database of exactly
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what has happened in each death penalty case. that has been much easier in the context of the death penalty. that body of evidence developed has been crucial to the way people have been thinking about challenging the death penalty in more recent years. about the way transparency and the spotlight on these kind of punishment help to galvanize a moment to galvanize a moment of reform and, when there is a lack of understanding going on, it is much harder to reform. the second point i want to make is about not so much of this argument about the importance of her seizure over substance, but a lot of what courts in particular have done is focused on refinement of existing policies over reform. much aboutheard so
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the death penalty litigation, between 1972 and 1976, this should resonate. have beenrts tinkering, let's make this right. prisonencing law and litigation. the idea we could make prison conditions a little better by requiring a little more time outside, a little more light in the cells, that ended up becoming the minimum standards that became the best treatment anyone ever received, either in the present context or the death penalty context. thinking about not just procedure over substance or morality but also are we refining the institution or are we really thinking about the terms in which we think about it? and the last thing i want to think about dachshund i think situating the death penalty more
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broadly is so important -- the role of the people working in these institutions, whether it is the police officer's on the streets today who are facing some as criticism or the executioner in the death chambers and prisons or the prisoners who have to work in places like attica or san quentin, where the prisoners rioted, to really think about those people's perspective and the genuine fear, whether or not we agree with it, that they have working in these institutions. a lot of my work is the amount of discretion prison should -- inison officials have instituting confinement. they were afraid that there was not going to be a death penalty, that kind of threat to hold people -- to hold over people's head. this fear that people actually working in the prisons, the prosecutors working on these
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cases had, that they were going to lose the tools of control they had, i think, made them hold strongly in the face of reforms that were trying to wrest away from them. it became a battle of who was good to control the system rather than a more dramatic reform. there it is interesting to situate to the death penalty in that broader prison law context. [applause] >> thank you to all of our panelists. this discussion is being filmed by c-span. they had asked if you would be willing to walk over to the mic at the center of the aisle so it can be captured for the recording. with that said, we would love to take some questions. i would also invite panelists to make remarks or follow up with questions to the other panelists as well.
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we are all teachers, so we are used to -- [laughter] >> are you all historians? >> i was just curious. an article in "the new york times" about a prosecutor in louisiana. he said it is not the turned, but revenge of the state. i think the men had recently been ousted in election. i just wondered what you thought about that. he said i don't care about deterrent. these people deserve to die. as i said, "the new york times" had a front-page article on it. i just wondered what your comments on that would be.
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>> i can take that. of the interesting things, when you look at death isalty advocacy since gregg that, actually, the revenge thing, if it gets brought up, it gets brought up in the context of the victims or the families. what you would typically see is -- it is something that contributes to the decision whether to impose the death penalty or not. what often gets forgotten in these discussions is that there is a plurality of reaction in the victims families. they're not all made of the same cloth. they don't all feel the same about the death penalty. in recent, more financial efforts to abolish the death penalty have leaned on victims families who say the murder of my loved one was never sold. i would rather this money be spent on friday people who are killing people and raping people
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rather than on 20 years of litigation leading to an execution or not. so there is i quite a plurality of opinions. this is something i see often when i hear prosecutors and conservative lawmakers interviewing about the death penalty. there is some kind of a bifurcation between old-school conservatives and your conservatives. the old-school conservatives are like the prosecutor you mentioned, they typically invoke these issues a revenge, which is to be more popular when the death penalty was still being discussed on the basis of emotions and values and ideals i think the newer generation leans more towards talking, you know, is it efficient? does it make sense? gap is also a generational within the conservative contingent. it -- part of what is going on is that the younger generation of politicians and prosecutors did not grow up with the primates of the 1960's. they grew up with a drop in crime rates of the 1980's and
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1990's. that is why we see more bipartisan agreement on this than we would see before. so the guy you are talking about would be more old-school in the sense of how he is justifying this. and this is an argument heard less and less in this debate. thehenever i talk about theories of punishment that exist, like why do we punish and they usually get categorized into deterrents and incapacitation, maybe rehabilitation and retribution -- it may be that we want to have the tribute of laws, but it is unusual to have laws that are not usually caring. you can measure a deterrent effect on crime rates. you can measure those things. but you can't measure retribution. it's not the same kind -- it's a different category of cause or reason for punishment.
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somebody, when we send somebody to prison for stealing a car, rarely, i think, is retribution invoked as the purpose for doing that. it is only in capital murder or something like that. judges point out it is a different kind of purpose of punishment. the question points to a broader trend in scholarship on the death penalty. overtime, scholars have moved from trent to understand what it is about the united states amongst industrialized nations, that is exceptional, that helps us understand why we retain the death penalty to more regional analyses, why do we see so much of the use of the penalty concentrated in the south in the southwest to now a move where we are focusing on many folks working in this area, focusing on what is going on in individual counties.
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executed 40% of all folks who have been executed since 1977. but there our -- but there are counties in texas that have not seen one capitaltrial. one of the variables that i think we need to focus on when we look at these counties is the prosecutors that are leading them. if you look at two of the three top counties in terms of the number of executions they have produced, harris county, oklahoma county, where oklahoma city is, you have men behind the home of the district attorney's office for 20 years. i look between 1980 and 2000, who presented themselves in precisely the way that this louisiana district attorney presented himself, which is as, in some ways, wild west sheriff ape, who are appealing to
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parochialism, appealing to a kind of antiquated code of honor -- youur standing in know, they present themselves as this kind of outsiders to a system that they have managed to move to the center of and yet they disclaim their participation in that system. the system is the enemy. and the death penalty is being wielded on behalf of grieving families. but it is also this way of overthrowing a kind of of --ation, a kind frustration with a kind of liberal legal order that contributed to a creation of this mythology that the sentences did not lead to licenses. and to keep freedom loving people safe is through a death sentence. so you needed these outside of figures who recall in mythological past who would do
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that kind of dirty work and overturn a liberal legal order that was so emotionally dissatisfying and, in many minds, unsafe. >> to pick up on a theme i have heard through the panel, thinking about the specific prosecutors is interesting to realize how much agency wanted to individuals can have in the system. a sensethere is often of helplessness when we think about unintended consequences or this liberal focus on procedural as in, an inevitable way that the system is going. if you look closely, there are individuals we camp in point, whether it is a particular justice or prosecutor that has managed to have a lot of control of the system. once you see that the maid becomes interesting to think about how we can reform that and how we can think about different individuals who might have an opposing kind of power over this. >> on a little bit different
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touchdid your research the area of minimum mandatory sentencing and the corrosive effect that has had on the due process rights of millions of defendants in north america who have been overcharged and over indicted? prison law andon how prison conditions come about and get institutionalized. disaggregate.o it is an interesting parallel between greg and that being the year they started to pass mandatory sentencing laws. an integral part of the buildup of mass incarceration and there has been and growing proliferation the mandatory minimum laws in
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the offices where the sentences happened behind closed doors and they don't have any of those. one of the fears of abolishing the death penalty is no one will be left having the procedural rights definitely. >> there is an interesting story about this. inore the vote on prop 34 california, the san francisco chronicle published a poll where inmates on death row whether they supported the abolition campaign. propnmates did not support 34 and the argument presumably was they would lose their free attorneys. at the time, i was teaching a class in san quentin and most of my students were lifers. that it was all
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focused on the death row inmates and california has something like 731. vast population of inmates and we are thinking if the death penalty gets abolished, maybe we will get some free attorneys and i said dream on, i don't think it's going to happen. a serious problem but it is a serious problem with a small population in regard to population and it doesn't focus on a lot of other things i think that require attention. >> i totally agree. to return to danny's point about parochial libertarian dnas, describespaper that
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the situation. there are a handful of counties that do it all. almost all the counties in texas don't do the death penalty. it's just a couple and that's true in all of these executing states. maricopa county in arizona is almost the whole story. part of that is just population and demographics, but if you could map it, it is striking in these little pinprick spots and that is it. mass incarceration is everywhere, so i completely agree. >> thank you very much. i really enjoy the panel so far. we are talking about these counties and the individuals there, are there people who we are thinking of as being elected
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officials were appointed officials? how does that factor play in? and for telling a big story about the long-term history of the death penalty, would you say we are in the post gregg time or is there an other turning point that we should put as a kind of coda on the story? question,first prosecutors are typically -- they although it is are elected but typically elections are not contested and have -- and have low visibility, which is why you have these incumbents often for decades who would run on a tough on crime platform but were not chasing a lot of opposition. the elections tend to be kind of
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pro forma. starting to see an awareness among people pushing for criminal justice reform, the keys are local decisions and hands of these elected officials, so we are seeing movement toward more active engagement, so the gentleman that was just voted out, there's a county in mississippi where a long-standing elderly prosecutor was ousted by a 32-year-old who ran on a very reform plan form of not sending people to prison that don't need to be sent to prison. it's a very interesting story to see if that continues. and the second question, i will see if anyone else has the thoughts on that --
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>> opinions on that could differ, but a turning point is december, 2007, the financial crisis. not that the numbers say anything particularly meaningful , but 19 state in the united states have abolished the death penalty. seven abolished since the financial crisis. if you look at the campaign, you see the campaigns are motivated largely by the efficiency of the death healthy. this is what evan was talking about -- is there going to be a big case coming up, this big supreme court case, and is it let's wait until there is a critical mass and see if more states abolish. is president obama going to do changes theat
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balance that the federal government is going to do to throw in with a 19 abolitionist states -- any of these paths could lead to something interesting. this may be my bias is someone who studies california, but i think what happens in california is going to be important because we have the biggest death row in the country. voterolition backed by initiatives in california will be an important factor and my hope is something like this might happen. i'm wondering where the fed should go on this. crisisink the financial is the process that begins around the year 2000. i might market at september 11. the figure of fear becomes the
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international terrorist in popular imagination. falling crime rate seem to affect a sense of domestic security in many minds, but this is also when we see dna exonerations taking off and hitting a high point. pinpointsbaumgartner the are 2000 were media coverage about the death penalty changes and moves from a moralistic, is the death penalty justice, is a good public policy, to an overwhelming focus on exoneration and that seems to change the conversation and that is happening around the same general time. you see governor ryan offering clemency in 2003. i think the story shifts and we
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move into a post gregg era right around 2000, 2001. do the panelists have questions? >> in addition to the kind of rumor that president obama might do something before leaving office, i've heard jerry brown some stand before leaving office given his background. i saw him and his quote was modernity consists of individualism and fossil fuel.
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i'm curious if you have any he goes into the sunset of his political career. >> jerry brown is a very interesting political figure. many sunsetsen so in his political career, yet he keeps coming back. every time people have started thinking is he going to really do something, what is going to happen, he gets elected again and i guess there was some need to pander to some sort of bipartisan of them. come -- california is a complicated place to govern and you can't really do these grand gestures. interesting to think about him as well as our attorney general because just recently, when the federal district court said it was unconstitutional because of all of these crazy expenses, many of us were sitting tight on our seats thinking are they going to appeal?
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kamala harris is on record as being personally opposed to the death penalty. jerry has said he is also opposed to the death penalty. all you have to do -- don't just do something, stand there. for a few dayse and then we will see what happens. it's not that the death penalty butd automatically go away, it would have been a big step toward making it practically crumble. yet two days before the last toe for appeal, they decided appeal and at the time, i organized a petition that i started asking the attorney general not to appeal the decision. of phone calls and thousands of people signed it and i ended up eating a personal phone call from the attorney general's office saying we need to explain to you why we did this. what i got was a very jumbled
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reasoning that didn't make a lot of sense to me -- this is due process. and i suspect it in some ways, jerry brown and kamala harris are a similar type of politician. they're a smart on crime politician. they do not come at a rum values. this is an ordered society and this is how it needs to be. this relates to a lot of important things -- you can't look at the death penalty divorced from all the other issues and one of the really disturbing features of the early stages of jerry brown's career as governor in the second installment of his being governor was denying there was a problem at all. isnwhile, the prison system bursting at the seams and somebody dies of a completely
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preventable condition. it was only later when the federal court intervened that the brown administration was forced to do something. but this idea of we are not going to move unless someone forces us to characterizes both s, much to ther disappointment of progressive voters in the state. >> this is a broad question about gender. i wonder the extent to which the president has female death row inmates have shaped the rhetoric around this phenomenon? >> this is something one of my students did a quantitative study comparing women and men who committed domestic homicides to see the percentages and why people were sentenced to death as opposed to life without parole.
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he found out and this goes back to paul's comments about the aggravating and mitigating thing about rationalizing these factors. the list of aggravating factors that would tip the scale contained several factors that are actually stacked against women offenders, typically when women engage in acts of violence. goalof this is just as a size and opposite sex homicide. in a weird way, these factors that were supposed to take a proxy that the defense was more severe is stacking the deck against women. california does have one woman on death row. she is not in san quentin, which is an institution for men. she is with other women who are not sentenced to death. see when you look at , iia reports of these crimes
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will mention his name again -- he is a fantastic attorney in portland, oregon. typically, when you see coverage it goes to stereotypic they feminine descriptions of is anal features or their effort to demonize and sensationalize the crime and that is aimed at women that do not conform to a typical feminine prison in court. executed a woman and october and that was the first woman who had been executed that i can remember and i think that was a good example. to my interpretation, and it wasn't a landslide of anticipation because she was a woman but the idea of women in the criminal justice position to
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protect vulnerable populations, this goes back to the argument of richard feynman versus reform . there are not enough women sentenced to death to make them but do we see them enough with juveniles and people with low iqs being things like life without parole or solitary confinement. they either get polarized or demonize as the worst of the worst or they become part of a population that gets carved off and implicitly part of correcting the system in doing a better job at identifying of the people who are the worst of the worst. federation,ssian they have a death penalty statute on the books.
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it's a de facto abolitionist statement only men are eligible. i would add that anecdotally, a lot of discourse around redemption and rehabilitation casesme out in celebrated of women being put to death. i'm thinking of karla faye tucker who was put to death in texas in the late 1990's and then a woman put to death here in georgia and it has become this real moment of both of these executions have produced sometimes rising political and in the late 90's, pat robertson, an evangelical christian leader, we know statistically in the 1990's, evangelical supported the death penalty more than other religious groups. but they karla faye tucker case made him change his mind about the death penalty and he went on record saying when there was a
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genuine change of heart, he did not believe the death penalty was an appropriate response. the redemption of a woman who is sexually nonnormative, who killed her husband with a pick ax and had renounced a role, was a roadie for the avid others and she herself reconstructs herself on death row as a maternal figure talking about how she would like to reverse her hysterectomy and wants to have children. really in that sense converted a lot of evangelical christians who were normally more likely to subvert the death penalty to their cause. which onee time, would expect to be against the death penalty should go on the record in some way supporting the death penalty for
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karla faye tucker. posted op-eds saying that while they were uncomfortable, they did not like the discourse of paternalism surrounding efforts to keep karla faye tucker from being executed. if we were going to have a death penalty, we ought to apply it equally and that ought to come with a supportive place where we would express gender equality. you have these awkward op-ed people saying i don't like it but if we are going to have it, karla faye tucker needs to die. at the same time, you have evangelical christians citing the old testament who believe karla faye tucker -- that god has directly intervened in her life. i think the cases of women on death throw complicate and bring out nuances that would otherwise go unnoticed.
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any other final questions? thank you very much for being with us today and thank you to the panel for excellent and insightful commentary. [no audio] -- [applause] >> you are watching american history tv, all weekend, every weekend on c-span3. to join the conversation, like us on facebook at c-span history. "reel america" brings you films that provides context for today's issues. >> in the cities, and the towns together.ies, we work we are many races, religions

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