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tv   Landmark Cases Gregg v. Georgia  CSPAN  May 8, 2018 12:00am-1:37am EDT

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our democracy will not only survived, but it will thrive in the future. thank you so much. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> up next, our original series landmark cases takes a look at the 1976 a premium court . georgia.n gregg v followed by melania trump unveiling her new platform. later, a conversation on efforts
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to combat human trafficking in the travel and tourism industries. >> the u.s. supreme court today ruled that the death penalty does not necessarily represent cruel and unusual punishment. it can be a deterrent to crime. by seven-to the judges upheld the death penalty in florida, georgia, and texas. other states may be affected in a similar way. by 5-4 the court struck down capital punishment laws in north carolina and louisiana. that ruling could prevent other states from invoking their own death penalty laws. ♪ >> all persons having business before the honorable, the supreme court of the united states are invited to go there and give their attention. >> landmark cases. c-span's special history series, produced in partnership with the national constitution center. exploring the human stories and constitutional dramas between 12 historic supreme court decisions.
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>> mr. chief justice and may it please court -- >> good evening, welcome to c-span's landmark cases. tonight, the death penalty in the case of gregg v. georgia in 1976. as you heard in the news report in the opening, it was a complicated case. the laws in three states it was laws inwhile the louisiana and north carolina, had to be rewritten. it did not settle the death penalty debate, which has been going on ever since. tonight we will talk with two people who spend a lot of time thinking about this. it will help us understand the cases. what the mood in american society was like at the time and what legacy of these decisions have been. let me introduce our first guest. she clicked once for thurgood marshall and she is the co-author, with her brother, of
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a book about the supreme court and capital punishment. kurt scheidegger is raced at an -- legal director at an organization based in sacramento. is in organization for swift acting criminal justice system. he and his organization have filed more than 100 briefs in supreme court cases. welcome. as we start out, the supreme court has heard many cases on the death penalty. what is it about gregg v. georgia that makes this a landmark case? >> the court has rarely confronted the question of whether the death penalty is constitutional or not. most cases involve particular procedures and statutes. this case did squarely grappling with the fundamental question of the constitutionality of the death penalty. susan: what else do we know what about this? >> previously, the court struck down capital punishment as it was practiced in the united states. so it abolished capital
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punishment. ,ad the court not backtracked and reinstated the american death penalty, the united states would have abolished the death penalty roughly on the timeframe of our western democratic peers. so today, the united states is the only country in the world that still has the death penalty. the only western democracy. we would not be in that situation had the decision not been overturned by gregg. susan: we are learning about the constitution. there are three amendments that have something to do with this case. first of all, the fifth amendment. no person shall be held to answer for capital or other infamous crime unless resented by grand jury, nor be deprived of life, liberty, or property, without due process of lopp. -- of law. also, there's the 14th amendment. because the laws were different in different states.
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no state shall make an amendment or enforce any law that will deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protections of laws. and finally, the eighth amendment that says excessive bail shall not be required to access and crimes of prose, nor cruel and unusual punishment inflicted. and in gregg v. georgia, in this, were all of these amendments under consideration? or only one or some? >> because the court was reconsidering the decision of foreman, mostly that eighth amendment was at stake. that was the basis of the ruling in for a minute versus georgia set aside in 1776. the eighth amendment only applies to the states as opposed to the federal government through the due process clause of the 14th amendment. >> the additional reason, the due process and protection
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clause arguments have been considered before by the supreme court in 1971. beenourt has been -- had upheld in the causes of those constitutions -- of the constitution. susan: we are start by listening to two justices. justice breyer and justice scalia, talking about the definition of cruel and unusual in the eighth amendment. we will hear what they have to say. let's listen. >> practices that were followed at the time of the founding. ear-notching, pillorying. that arose would you find likely that they are constitutional? >> i would find they are constitutional and stupid. enormous amount of stuff that is constitutional is stupid. it cannot be the test. >> the word in the constitution is "cruel" and "unusual," it is possible over time people have a different idea of what is cruel.
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that does not mean that that thing is not cruel because someone in the 18th century thought it was not. but it does not change its meaning. he taught himself as though it is a one-way street. >> we get more gentle overage, not more cruel. it is not a one-way street. if you think cruel is whatever you think is cruel, not what the founders thought was cruel. what if you begin to think things are not cruel that they thought were cruel. they thought some things were bad that nowadays, are not so bad. we have it more violent society. is that all of the eighth amendment means? to thine own self he true? don't do with anything you think is cruel. we have our own notions of cruel. we don't want to bind you to our notions of cruel. that cannot be what it meant.
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it was obviously meant to set a standard. once you agree to that, it sets a standard in both directions. susan: that is a great piece of tape because you really see the arguments on the court about the meaning of the constitution. when you watch this, for both of you, what is your reaction? >> i think the real question, and it is an ongoing debate, is how much we should interpret the constitution the way the framers would have interpreted it when cash it in 1789 or 1791 when the constitution was ratified. i always think of an analogy such as this one, suppose your 1930-grandmother left in for her children and her children's children to use the money to eat healthy food. back in 1930 or so, healthy food was red meat, whole fat dairy, and eggs. today you are trying to be faithful to that request, to use it for a healthy food, might not
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be considered to be steak and eggs and milk. the idea is, you are being faithful to the meaning of the constitution or a will, if you interpret it over time as ideas change. susan: do we have any sense from the writings of the founders in the constitution, to what they put in the amendment? what their thought of cruel and unusual men? >> that was an outlier, that was not the argument of that defenders of the statutes in the gregg cases. as far as what the founders meant, i think they were using a term that was understood in english law. unusual meant outside the normal usages of the law. i think unusual can change over time.
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i think the practices they were mentioning were usual at the time of the founding but are unusual today, having been universally rejected. but that is it different than saying the court can decide on its own if something is cruel and unusual. even though it is the law in most states and widely adopted. >> the death penalty has been part of our societies since the earliest days. the first earliest recording was in 1608 in georgetown, virginia. captain george kendall was executed by firing squad for spying on behalf of the spanish and allegedly creating with native tribes. to learn more about history of the death penalty in the united states, we visited the alcatraz museum in tennessee. formally, the crime and museum here and washington, d.c. and learn more about capital punishment over the centuries. alcatraz crime museum is
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located in tennessee. we used to be an washington, d.c. capital punishment has always been working through an effort to try to make execution more humane. in our capital punishment gallery we have discussed what was used in europe, burning at the stake, beheading, drawn and quartered, all of those gory things. coming to the united states, first it was hangings. each successive method was trying to find ways to make execution more humane and painless. the electric chair from the tennessee state prison is called old smokey. it was used from 1916 to 1960 with 125 executions. it was made from wood from the former gallows and made by the prisoners. the electric chair is often sort of a joke, but it is true was developed by a dentist. modifying a dentist chair.
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because he felt that using the modern invention of electrocution would be more humane than hanging. with the execution electric chair was in 1890 in new york. a man named william kenmore was executed for murdering his wife with a hatchet. it did not quite go as planned. it did not go as fast as they were anticipating. george westinghouse said they would have been better if they had used an ax. this gas chamber is a reproduction based on the chambers in wyoming and new mexico. if you look up photos it looks similar because it was based on the original. the gas chamber was only used relatively briefly. it was first used in nevada in 1924. byy first tried using it filling a cell of a prisoner with gas.
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they were trying to kill him while he slept. because it was not airtight, the air escaped and it was not exactly say for the prison guards and other employees, so ed a lot at refining the method. it never really caught on because of partly because of the danger posed to witnesses and guards. guards were not really comfortable with that. and it took a lot longer than they originally anticipated. it never really replaced the electric chair. electric chairs were used commonly as an alternative. susan: later in our program we will return to alcatraz to learn about later methods of execution in the united states. before we talk about the supreme court cases prior to gregg v georgia i want to tell you , about involving you in the discussion. we would very much like your
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participation. if you live in the eastern are essential time zones, you can reach us at the numbers on the screen. also for mountain and pacific, the numbers on the screen. you can also reach us with your twitter comments. use the #landmark cases and we will mix your twitter comments in for our guests throughout the program. i have three cases of notes on earlier capital punishment cases. what should we know about earlier cases? did require an appointed lawyer for each of his defendants facing capital punishment. later and that is when it landed on my marquesas. landmark cases. guided -- of on unguided discretion and juries,
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that is they had the authority to decide capital punishment or not without any guidance or instruction, whether that violated the due process or equal protection clauses. that was decided the year before in favor of upholding the system 6-3. and one came the previous year accepted by a 5-4 margin, very largely the same argument rejected the year before. although, under the eighth amendment. susan: what was happening to public opinion in that short period of time. this court was picking up the cases and position? >> public opinion in united states mirrored public opinion in the world. around the death penalty in the 1960's. the death penalty came under increasing attack. many of our countries abolished the death penalty in the 1960's and that was the beginning of a strong movement in europe and elsewhere to abolish the death
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penalty. so, the gallup polling organization showed that for the first time in history, more people opposed the death penalty than supported it in 1966 of many people thought we were coming to the end of capital punishment in the united states. >> the gallup poll graph actually kind of mirrors the crime rate. if you plot the crime rates and homicide rates on the same poll and graph is the gallup poll, you see that they fall together. susan: the question for both of you, as we try to teach people about how the court operates, the justices will always tell you they are immune to public opinion so they try not to follow the news and that sort of thing. in fact, especially in this case, do they really take the temperature of the american public has they are deciding these cases?
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or decide to consider them? >> i am sure they do. i think particularly when they are looking at cases under the eighth amendment which deals with cruel and unusual punishment, the court set for test forhat the whether if something was cruel was whether it violated the evolving standards of decency. so it was under the eighth amendment that the court took the temperature of prevailing attitudes. what is your opinion on this? >> the court does take into consideration the legislative reaction to furman. and the fact that so many states had reinstated their death penalty laws after. i think it was in important gauge for the court of what is considered acceptable and what is unusual in our society today.
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many states reacted? kent: 35 states reacted. >> there was absolutely a backlash to furman in the 1970's. i think it was the timing of that the court had come to its decision at a time of greatly rising crime and fear of terrorism. i think of the court had made the same decision that a different time, we may not have seen the same kind of backlash. susan: we are going to learn more about the five cases that were joined together in these rulings. before we do that, let's hear from some callers. great is in orlando and on the air. caller: hello. great show. i wanted to know, does a person's legal status, does that have any bearing on whether they can be executed in our country? >> legal status, you have to be
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convicted of murder and whether you have a prior conviction of murder in some states is one of the qualifying circumstances. if that is what he means by legal status then, yes. susan: leon in brunswick, georgia, your question. caller: i want to know why we keep feeding these cold-blooded killers and letting them live and why we put them in there with other criminals that are not killers and then have to put up with all of that. susan: that is an argument you often hear, it costs a lot to incarcerate people for life and it is less expensive to meet out there punishment. what do the numbers really tell us about the cost of the death penalty appeals versus the cost of incarceration? >> it turns out to be the opposite. i suppose there was a time in history when it was less
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expensive to have the death penalty than to have life imprisonment. but many states have studied their own capital justice systems and it is clear that it is far more expensive to have capital punishment than it is to have life imprisonment. even when you take into account the cost of incarcerating someone for life. much more expensive and that is why think there has been such a declining use of the death penalty in recent times. it is just extraordinarily expensive to do. susan: is it legal challenges? are legal challenges, most have to do with the required process that grew out of the gregg decisions and the decisions of followed. the supreme court has said there are certain procedures now mandated by the constitution. prior to the 1970's and furman and gregg, there was no regulation of the capital justice process. thee 1976, since gregg, supreme court has taken an
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ongoing role in making a lot of rules, constitutional rules distraction of the capital justice process. susan: what is your organizational view on this? >> many of the studies of the cost are flogged. figures are disputed. as far as the length of review and milling of time of review, many of the procedures are not mandated by the constitution. many of them take too long. the failure of courts to comply with the law congress has already passed to expedite those procedures is a big part of the problem. the holocaust argument is very complex. susan: i should state -- state that the studies that have been done have been done by the states themselves. i am not talking about studies bipartisan groups. these are states trying to understand how much they are spending. the state studies have revealed the enormous cost of the capital justice process. we have a viewer who wants to clarify the question.
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he thinks the caller at first meant the legal citizenship. is there any difference in the law? so if you have been convicted and sentenced it does not matter country of origin? >> no. susan: craig in florida. caller: i had a question about the constitutionality in the supreme court involving the military death penalty and also the status of terrorists facing the death penalty. an issue did come up with a regard to the military death penalty, as to whether the president or congress could specify some of the requirements for the debt the multi-. that was a case called loving versus the united states and the decision was, yes, the united states was valid. susan: do you know more about those two circumstances?
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carol: the military death penalty is subject to the same constitutional rules as the death penalty in criminal courts. susan: so someone convicted in the military courts has the same right of appeals? carol: yes. susan: to georgia case, which gave the entire decision it needed, involved troy leon reg. kent: he was out hitchhiking. two men picked up gregg and another man as they were hitchhiking. one of the men had a wad of cash on him, which he managed to let gregg c. at one point they decided to take a pit stop and go off down a bank on the side of the road. the two men come of the driver and his friend. gregg tookack up, the car and wad of money. the other case is a case from florida.
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it was a burglary in which a man stabbed a homeowner through the heart with a butcher knife. not too many details are known. the third case, a man had expressed a desire to have sex with young girls. he kidnapped a 10-year-old girl, wendy adams, driving her away from a public park screaming "help me, help me," and there is dispute of what happened there he strangled her and threw her body in the river. case: one is the louisiana and the other does the north carolina case. carol: robert was convicted of murdering a gas station attendant named richard lowe in lake charles, louisiana, in 1974. james woodson, in north
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carolina, was convicted of playing a part in a murder. his part was to drive the getaway car. it was his codependent who robbed a store and killed a store owner, shirley butler in north carolina. under the law of north carolina, if someone died during the course of a felony that was so-called "felony murder" and everyone involved, whether or not they were the killers, were considered murderers. in both of those states, louisiana and north carolina, under the new laws that were passed after the furman decision in 1972, the death penalty was mandatory. this was never given to a jury to decide, it was mandated by statute if you are convicted of a capital crime you would automatically be sentenced to death. susan: so what is the difference in the two states?
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kent: mandatory sentence upon conviction for a particular crime. versus the guided discretion approach where the jury is allowed to decide but given guidance on how to approach the decision. susan: how often does the court take cases in block like this? carol: that is quite unusual. kent: i don't know of any other case. susan: do we know why? kent: i suppose because there was a variety of legislative reactions. the furman case had left the law confused because it had five separate opinions. nobody really knew what the law was or what was required, permitted. so there was a lot of different laws in different states. they wanted to take a spectrum to sort it all out. susan: we are going to move onto
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the court and we will mix in calls. inwill move on to the court 1976. eisenhower appointees include william brennan. kennedy appointees, byron white. johnson appointee, thurgood marshall. and nixon appointee, chief justice warren burger along with harry blackmun and ford appointee, and president ford was in office in 1976. it was chief stephens. the oral arguments were heard over two days, march 30 and march 31. they had more than four hours of arguments. is that a surprise considering a -- the number of cases? kent: you have a prosecution and defense attorney for each case. the general for the
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united states and one by the california attorney general. susan: a question for both of you, what was the overall attitude of the berger court toward criminal justice cases? we learned a lot about the war warren court. did it establishes sort of worldview during its time? carol: many people talk about the counterrevolution wrought by the berger court. the warren court had been known for bringing many procedural protections in criminal cases such as the famous miranda warnings. the applications of the exclusionary rule that the states are unconstitutionally seized evidence. the extension of the right to a jury trial in the states which had not been mandated until 1968. the requirement for a right to counsel in all serious criminal cases in defendants, which has
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also not been extended to all states. so that was the warren court procedural revolution. they really try to walk about back and establish many more limitations on the rights created by the warren court. susan: what are some of the criminal justice cases the court took on that established its reputation? kent: i don't think it qualifies as a counterrevolution. they did not push much further. there was some cutbacks but i think on the whole it was a fairly mild correction after the huge things that happened during warren court era. we did see the good faith exception to the exclusionary rule, for example. but the exclusionary rule itself still stands. we saw some exceptions to the miranda rule, but the main miranda rule is still there. there are movements back in the other direction, but not a
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susan: let's return to your questions. caller: should the supreme court even be reviewing the death penalty as unconstitutional? should not the courts have let that to the states as to crime and punishment outside the realm of the federal government? degreet did provide some of criminal process that had not been there before. i think the constitutionality of the death penalty was fairly clear as chief justice warned himself said during the previous decade. carol: the constitution does address punishment. cannot be cruel and unusual
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punishments. it does not give us much guide -- guidance. that leaves it in the hands of the justice to interpret those call, which are what they majestic generalities of the constitution. the unreasonable search and seizure clause, none of these things are self defining. court has to do their best to give it meeting -- meaning. next is allison from alabama. caller: are you there? sorry about that. -- s move on to jerry in susan: let's move on to jerry in portland, oregon. murderedy father was by his second wife during
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breakfast one morning. she was convicted of murder and sentenced to six years probation. primarily because of his abusive nature. when this occurred, i began studying the death penalty. advantage of a cousin who was a federal judge for a while. it has become apparent to me that a reasonable person would take anybody who has committed such a crime, find out what they are creating -- what the creating factors were and what
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environment they matured in that enabled him to commit such a crime. to avoidways forreating that environment the future. us your lifeg story. how old were you when this happened? caller: 38. susan: thank you for the call. extent that you want to change circumstances for people in the future, that is a worthy thing to do. the crime has already happened. the question of how to punish it to prevent it happening in the future.
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carol: on death row, overwhelmingly, the defendants that end up there are from the poorest of the poor families. often with cognitive impairments, untreated mental subject ofitions, horrific childhood neglect and abuse. they wanted to prevent their crimes. i think the caller has a good point. we might do well to address those conditions. josh, i know you have been with us throughout the series. good to hear from you tonight. do you think the court risks losing their credibility in such a short period of time? i can think of one other example. it was the flag salute cases.
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it reverses itself. i do think that is an issue. he has a point that it is hard to know what he meant. they invited the states to do exactly what they did, pointing out that the supreme court seemed most concerned about the absence of direction to juries. court in 1976 did not really have to overturn any particular inding that garnered votes 1972 because nothing really garnered five votes in 1972. and say theyack
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abolished the death penalty and reinstated it in 1976, but i think at the time it looked more complicated than that. kent: it has been a continuing problem because the court has contradicted itself. it has contradicted itself a couple more times since then. it is hard for states to build a lasting and just system of capital punishment when the court cannot agree with itself on what the constitution requires and what it prevents. the court has just been all over the map with cap -- capital punishment and changing its mind right and left about what is required, what is for bid in, what is permitted. do you know why it struggled so much? carol: from the very get-go,
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there were three different wings on the course. there were justices brennan and marshall who were the only two who said -- this was a clear position that the death penalty in all cases was cruel and unusual punishment. then you had chief justice burger and some of the other justices who said we have no business saying anything to the states, getting into this regulatory position because they should be free to have the death penalty or not, as they see fit. greg, thegets us to justices who joined together to form a plurality opinion that tried to mediate between these mandatepolls and take a approach. needed the leave it all alone vote.
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they had to keep swinging between these polls in order to do anything. to a set of cases that are very hard to make sense of. james is in okoboji, iowa. my question, regarding lethal injection, there have been a number of challenges based on the compounds that are used. what i never understood, whether , i've political or legal seen animals put down. these states go through contortions with these exotic compounds. why don't they change over?
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they have used that. there is a problem. the pharmaceutical industry has become very international. some of these compounds are imported. the same process up -- that veterinarians use. it is a must. carol: i am struck by your description of the blocks that existed on the courts. much do the oral arguments matter? often, the do not matter. the justices have often
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made up their minds ahead of time. i think sometimes, they do. i had experiences when i was a law clerk. oral arguments did make a difference. susan: we heard that he filed a lot of reefs. -- briefs. kent: i will not deny that there might be cases where it makes a difference. that would be the exception, rather than the rule. that oral argument made much of a difference in this case. the attorney harrison argued on behalf of troy grade. grey. we are going to listen to mr. harris then and then the assistant attorney general. back, and we will
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ask you to start with telling us what you have heard in these lawyers argument. no prior record. he admitted he killed the people, but he said he did it in self-defense. the jury rejected it and that apparently is the end of it. he is still suffering the death penalty. submit that the 1973 law was an attempt to meet furman. it still leaves that discretion in the prosecution. i submit to you whether that is right or wrong and i would be the first to admit that some discretion must be from the prosecuting attorney.
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is it to have the right to carry, you live you if i understand the arguments made yesterday and earlier, what is being complained of under the eighth amendment's arbitrariness. understand the case, it did not say discretion was obstinate -- unconstitutional. system thats or a are therbitrariness wanton and freakish imposition of a death sentence is what was unconstitutional. if so, if that is the way i understand it. i listened to the way he said arbitrary. he said spared for no meaningful basis. without rhyme or reason. without justification, no
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rational basis. standard, what has been shown? -- hasriness arbitrariness been demonstrated in any degree? should geteryone who a death sentence under a system of justice or concept of just this, if you escape. have they shown anyone is scathing? susan: what did you hear in those arguments? are arguingthey about is whether georgia had done a good enough job in responding to the concerns that the court had expressed in years previously. you have to understand that prior to the decision, the way that capital sentencing looked in the u.s. was that juries to prevent and complete secession
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it is up to you to render a sentence. whether to give the death penalty or a sentence of life in prison, sometimes a term of years less than my, that decision is in your sole discretion, according to your conscience. they were giving nothing at all to guide it. that was essentially understood to be the key problem in furman versus georgia. you needed to find one from a list of aggravating factors, like the murder took place during the course of another felony. something to make a crime work. the jury was to consider whether there were any mitigating factors.
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the statute only dealt with the discretion that juries had in sentencing. theid not deal with discussion that prosecutors had. if there was a problem with discretion, it only addressed one piece of it. it is kind of strange. hear lawyers arguing that a statute is unconstitutional because actors in the system have too much ability to spare someone from the death penalty. in all the years we have been dealing with the reverse argument that there is not enough discretion to spare someone from the penalty.
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it is really quite opposite to what the fights have been about ever since. susan: let's move on to our second set of oral arguments. this is a louisiana case. on behalf of louisiana, assistant district attorney james bavin. i will ask about anthony amsterdam. he was the attorney in the furman case. kent: he was. he came back again for this case. he argued for three of the defendants. texas, louisiana, and one of the other cases. he was kind of the lead attorney. two of the others had another to -- another attorney. susan: let's listen to a portion
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of the oral argument. -- this court said it was different. this court did not mean to strike down in furman sentences of life imprisonment. they have broad discretion to sentence both things are less, as they did life or death. second, the legislatures of the states have recognized that death is different. this is the thrust of my point. that in responding to furman, 35 legislatures have come back with this narrow and technical approach allowing procedures that allow wholesale outlet. jurisdictions and life in prison meant -- the legislatures says it is different. it carries with it the
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mandatory death penalty. the jury in this case, in the case of a first-degree murder case has defined every element of that crime before they can return a verdict of guilty. prove eache fails to and every one of those elements, then he is instructed to return a verdict of not guilty or he is given a list of responsive verdicts, which he can return. the state has proven that he committed a crime. they have not proven that he committed a crime of first-degree murder. they have proven, beyond a reasonable doubt all of the elements of another crime. therefore, the jury can bring in a responsive verdict on the particular crime that is proven to it beyond a reasonable doubt. susan: we are going to start
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with you this time. description of the louisiana statutes, what the attorney for the state is saying, the jury returned a verdict for a lesser degree offense than first-degree murder. that is probably one of the main reasons the louisiana statute was struck down. you cannot eliminate discretion from the system if you squeeze the blue in one place and it pops out somewhere else. a jury can return a verdict of second-degree when they know it is first-degree just to avoid the death penalty. they can do that. amsterdam of course is continuing with his theme that there is too much discretion in the system. too much discretion in the system even with the mandatory statute. carol: you here for the first time in the argument there this idea that death is different.
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that is something that they wrote into the decision, saying that death is different from any kind of sentence of imprisonment, even for life, for 100 years, it is different in severity. that is something that the court has used over and over and over 1976,in the years since making special rules for capital trials that do not apply in ordinary criminal trials. asan: i will start with tweak. a viewer asked has there ever been a case where capital punishment was too lenient and then found to be cruel and unusual? does that apply only to the punishment or the societal view of justice for a particular crime? carol: as far as i know there has never been an idea that something could be too lenient. i do not think it could be described as cruel if it were
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too lenient. that has never been applied in that context. kent: there is a relation between what is constitutional and cruel and unusual and what is society's view of the punishment for the crime. there is a disproportionality aspect to the cruel and unusual punishment cases areas susan: death -- cases. susan: death is different. a student asked is it true that prison is kinder than the death penalty? carol: it is not entirely clear that prison is kinder. many jurors when they are being questions often think life imprisonment is a cooler elerence because -- cru sentence because the incarcerated would have to dwell on the harm that they did. there is some debate about that. about which is a worst sentence.
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although, most defendants say the vast majority of capital defendants seek to have their sentences become set aside and become life sentences instead. i think that indicates that for people who are actually facing the prospect, most of them would prefer to live, even in conditions like life imprisonment takes place under. few, weere are the very call them volunteers, who want to drop their appeals and accept their fate. whatever they do that, they claim that they are mentally incompetent because they want to do that. therefore they are unable to drop their appeals. it is not a good argument to say that life in prison is worse. susan: welcome to landmark cases. i had a question.
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i was wondering what you thought about the trump administration calling for the death of the for drug sentence -- drug offenses. what was your take on that? kent: it will not happen. i think that is more political rhetoric than a serious proposal. the justice department came out with further guidance that they were not going to seek legislation that would do that. they will make more effective use of the authority. it requires a death in addition to a crime. carol: it does not require a murder. it could be an overdose death. it is hard to know whether to take attorney general sessions at his word that this is what he wants the justice department to be moving toward. it would certainly be a great departure from the use of the death penalty in recent decades. it would put us more in line with the use of the death penalty in some of the more
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repressive regimes around the world where drug dealers are routinely executed. susan: a call from columbia, missouri. you are on the air. caller: i have three quick points at it would like your guest to address. one, if you are white and rich you almost never get the death penalty. second, it is inequitable. there is no evidence that capital punishment is more of a deterrent than life in prison. european countries have done away with capital punishment with low homicide rates. my state of missouri, is the fourth highest homicide rate in the country with the death penalty state. showsudy done by sciences that almost certainly, innocent people have been put to death. i would like reflection on those points. susan: thank you very much.
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kent: as far as the deterrence goes, there is evidence of deterrence. it is a disputed question. they are or not. it has certainly not been proven that the death penalty does not deter. as far as the execution of innocent people, i do not believe it has been definitively demonstrated that the executed people have been innocent. rich, white people who have been sentenced to death. we had a new jersey case that a person with a big-time political player. he was convicted and sentenced to death. he got off the same way a lot of people do, but he was sentenced to death. susan: anything more to add? carol: i think i tend to agree. the viewer has read much of the
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evidence that supports those points. on the deterrence question, in 2012 the national academy of sciences did a big overarching review of all the studies about deterrence to make sense of whether or not there is a deterrent effect, and ultimately they said that none of the studies alone or together make out a case of a deterrent effect. they also say they do not make out a case where a deterrent effect does not exist. we are at a place where we just do not know. the claimed evidence to support the deterrent effect has been debunked by this expert. kent: debunked is too strong a word. there is legitimate expert disagreement. franklin, tennessee. welcome. are you there? caller: i'm here.
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my question is, with the use of the guillotine, would there be cruel and unusual punishment? kent: it would certainly be unusual. i do not think anything like that will come back in the united states. susan: george in pittsburgh. you are on the air. caller: i was wondering if the term unusual has to do with the execution of the punishment or the ability to charge someone with that potential penalty? carol: it is unclear if those words cruel and unusual mean separate things. cruel, whatever that is and unusual, whatever that is. the court has never really made it clear. never made court has
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it clear. it often talks as if it is one thing, cruel and unusual. other times, he tried to parse the words. susan: let's move on to the court decision in this case. they announced it on july 2, 1976. there was a decision that the death penalty did not violate the eighth amendment and georgia, florida, and texas laws were constitutional. the north carolina and louisiana laws with mandatory death penalty being unconstitutional. the plurality opinion of stewart , joined bystephen to diseent, brennan and marshall. this is from nbc nightly news announcing the decision to the public.
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>> it has been said that the court follows the election returns and there is evidence that may be so. 10 years ago more americans opposed the death penalty then favored it. a new poll shows that has slung around. only 21% oppose the death penalty. 71% that they wanted it restored. today the supreme court agreed. susan: going back to that question of whether they were influenced by what the public sentiment was. watching the news report what do you have to add? kent: the polling might have had some influence. they had sharp discontinuous jump in support after the furman decision. it was more a legislative reaction then it was the polling. enactment in a brief span of four years was a tidal wave of legislative expression. i think if we are going to talk about what is unusual, the court
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indicated in the opinion that this powerful legislative reaction is really a trump card against the argument that this is somehow contrary to the views of the american people. if you do not look to that, where the look? to yourself? i think that was the primary influence. susan: before we go, what is the significance of the court issuing a plurality? does it happen very often? carol: it does happen. it is sometimes hard to get five justices to upgrade with a reasoning for a judgment. there are always a majority for the result and the court can only affirm or reject the lower
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court, but the justices don't only agree on why. the pluralities are not an unusual thing. susan: here is a little of what the plurality said. carol: i would say that's the grounds for the court decision to roll this back, if you are looking to state legislative judgment, if that is the standard, 35 states is a lot. susan: to understand more about the split with north carolina and louisiana, here is an excerpt from that plurality. you would say?
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kent: this is consistent with the historical record of how the evolved in america before furman, mandatory death sentences were virtually unknown. states, along with california and new york and the congress, enacted mandatory laws because they interpreted furman as requiring it. owed the country and apology for having misled them in that regard. it is true that mandatory death sentences for a large number of murderers will sweep in a lot of people.
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people that most people think even though they should be severely punished they don't , deserve the death penalty. the court is correct that discretion is the better way to go. susan: two dissented from the decision. here is an excerpt from justice marshall. you told us earlier that they objected to this from a moral standpoint. does this continue to muddy the waters on the view of the death penalty? carol: it is interesting you should bring up the aspect of justice marshall's descent. i never thought it was a good argument. justice marshall says, it is not
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what people actually think. if they were fully informed about the death penalty, it is what they would think. it is kind of a condescending argument. it is like arguing with someone and saying, if you were as informed as i am, you would agree with me. that doesn't tend to be very persuasive. what is stunning about that argument, and i have made fun of it over the years in my classrooms, teaching the death penalty in court and in classes, it turns out to be true. it turns out to be crew of justice marshall -- true of justice marshall's colleagues on the bench. justices who dealt with the death penalty have changed their about the death penalty including some of the major , players in gregg, including justices stevens powell and blackmon, to all played a role
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in the majority in gregg, bringing the death penalty back. they agreed with justice marshall that the death penalty was on unconstitutional. marshall's idea that those who know about the death penalty was -- will come to see that it was not to be supported added weight on the court. let's show you the headlines in two of the states whose cases were involved in this. in atlanta, you can see the headline. "high court upholds state death penalty." you can see the same at the "picayune." was this a big issue in the court, finally? kent: it was a big issue. capital punishment has always been controversial.
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it became more controversial as crime and support for capital punishment rose. it became a significant issue in 1988 in the presidential election. susan: immediately after the decision, here is what happened to the prisoners in this case. roberts and woodson were resentenced. this was to meet the court's objections. texas,the prisoner in and williams in florida remained on death row. back to calls. y, franklin, tennessee. go ahead. kerry, are you there? i know you're watching the television. it is time for you to ask the question. sorry about that. we will move on to earl in ottawa, illinois.
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caller: what is the average cost of appeals for a death row inmate? kent: i don't know that the cost for appeals has ever been specifically calculated. i don't have a reliable figure. carol: it varies state to state, but quite expensive. susan: tony in santa fe. caller: i would like to disagree with the gentleman's statement about people not being innocent. there has been 162 since 1976. illinois has the highest rate of overturned convictions, because they found the system was faulty.
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how can you say that there is not a chance we have killed even more, since the courts don't seem to want to listen or challenge anything after a person has been killed? kent: your question was about a person who was innocent who was actually executed. the number you refer to is a claim of innocence, of people who were convicted and then these convictions were subsequently reversed. that is a very different thing. that number is widely inflated. having people convicted and released is a different matter than people being executed who are in fact innocent.
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susan: we're talking about the georgia andgg vs. the death penalty. joe is up next. austin, texas. caller: you were talking earlier about the death penalty as a deterrent to the general population. sociologists talk about this a lot. also from the standpoint, i would like to know your opinion about the victims getting resolution by the fact of knowing the perpetrator of the murder, especially haneous murders, getting closure knowing the murderer will never be able to commit murders again. we had a case in texas where a man committed three murders, he had been released twice and recommitted. with the death penalty, the
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murderer can't ever recommit. i wanted to know your opinions on that. carol: i think crime victims are an important factor. there are many crime victims who would prefer there not to be a death penalty. that was an issue in the recent boston marathon bombing trial in massachusetts, where i am from. quite a number of the victims, including the family that was most impacted, that lost a child to the bombers, did not want the death penalty, because they felt the long appeals the defendant in that case would get, should the death sentence be imposed, would keep him in the public eye and make him a martyr in the way they did not want him to be. victims are quite varied in how they view a death sentence and what it will do for them in
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terms of closure. it is hard to reach one conclusion about that. kent: family members of my clients are the victims. family members and murder victims. for them, the final execution is an important moment, when it is absolutely final that the person has been punished for his crime, and they will never harm anyone else. they are very much interested to carried direct outand appeals do not need to be as dragged out as they are, and that is an important part of our work. there is no efficient resolution to these cases. susan: leonard in california, welcome. caller: relative to deterrence, are any of your panel members aware of any studies on deterrence and the death penalty? for example, saudi arabia, where justice is swift and sure.
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are you aware of any studies? kent: even across american states, it is difficult. there are differences other than the death penalty that interfere with the problem. to compare across very different cultures like the u.s. and saudi arabia, you would not be able to draw meaningful conclusions because the societies are so different in so many ways. carol: a study was done comparing singapore and hong kong, two societies that are relatively similar to one another, demographically, crime rates, etc. one of them had the death penalty and one didn't. over 10 or 20 years, the homicide rate went up and down virtually in unison. that was an interesting international study that seemed to suggest having the death penalty or not was not what was
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driving homicides up and down in those countries, despite otherwise similar situations. susan: here is what happened to the five criminals who were basically appealing their cases for the supreme court. we will start on gregg, the namesake in the case. here is what happened to him next. [video clip] >> the "albany georgia herald" got a phone call from gregg, who sentence had been an issue in 1976, when the u.s. supreme court upheld georgia's death penalty law. gregg told a reporter that he and three other inmates had sawed through bars on an exercise area window and escaped. the reporter called the warden of the maximum-security prison. check showed all men
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present and accounted for, it was learned later in the day the death row murderers had indeed escaped. the four killers escaped from georgia's death row were all monday accounted for. three surrendered in north carolina. the fourth was found in a nearby river. susan: so an unhappy life came to a violent end. mr. gregg's escape happened the day before his execution was to take place. none of the other prisoners met the death penalty. jerry received a petition for retrial in 1982. he convinced the court his confession was problematic. he was re-convicted and sentenced to life. he has been denied parole 17 times. he is still alive. the second, a career counseling service in baton rouge , louisiana.
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he owns a home in appaloosa. charles william's sentence was commuted by governor bob graham, and died at the age of 66 in february of 2012. james woodson was released from prison 18 years after the decision and worked as a volunteer prison chaplain. there anything we can take away from these people's lives? carol: some folks are released, and didn't reoffend. our best prediction of whose life is so blighted as to be worthy of extinguishment may not be so reliable. kent: these cases have different takeaways. the two went straight were a product of the mandatory sentencing systems. that isn't our system.
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it was only there for a brief interval. the gregg case is strange. the other case, the confession issue, was one on the edges of the law. a lot of judges looked at it and a lot disagreed. the fifth circuit circuit ended up deeply divided. i was a part of the last court of appeals to look at the case. illustrates that capital cases receive a lot of closer scrutiny than other cases. if he hadn't been sentenced to death, he probably would have gotten the first conviction overturned on that basis. there is a lot of different things going on. susan: what happened immediately with the death penalty in the u.s., if you were alive in 1977, you will remember the case of gary gilmore, the first person executed following the decision. he met his death by firing squad in utah. with the state at large, 31 states have the death penalty today.
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4 have a governor-imposed moratorium. 19 states do not. here are death row statistics. there are 1474 convicted criminals who have been executed. at the end of 2017, 2,817 are awaiting execution on death row. nine people have been executed in states across the united states in 2018. we will return to the alcatraz east museum and learn about the current means of execution and some of the controversies. [video clip] >> the lethal injection machine we have on display is part of a two-set piece, the control module, which has two sets of all the buttons, two sets of executioners hit the exact same buttons they push to release the drugs. they don't know which one of them is actually really
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containing the lethal dose. scientists are always looking for new ways to improve on the electric chair. that the lethal injection machine renders the victim unconscious before death makes it considered to be more humane. the lethal injection machine was first used in 1982 in texas using a combination of three , drugs, which in combination causes unconsciousness and then death. the drugs used in lethal injection are made in the european union. in 2011, they stopped selling these drugs to the united states , because of the practice of capital punishment. as these drugs have become less available, there has been some states that have moved to a one-drug method. there has been a number of court cases related to that, because some prisoners have felt they
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are being experimented on, that they have problems with this method, that the prisoners have not been rendered unconscious or it has taken a long time for them to die. it has been considered inhumane. the shortage of drugs used in lethal injections has led to some states reinstating the electric chair as a secondary option if these drugs are not available. susan: we discussed the availability of these drugs earlier in the program. i would like to have you explain the supreme court process before an inmate is put to death. how does that work? kent: the supreme court takes cases in its discretion from lower courts, state and federal. a case can be reviewed by the state courts first and go to a case, and from there,
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can go straight to the supreme court without having to go through the lower federal court first. the reviews are completed. what happens in the last days before an election, inmates file repeated petitions challenging their sentences. they do this in state courts and federal courts. if those are denied, they file last in the u.s. supreme court. carol: we hear these dramatic -- susan: we hear these dramatic stories of the 11th hour, when a single justice refuses whether or not an execution goes forward. how does that work? carol: a lot of decisions that come before the supreme court, the lower courts have to finish their review before the supreme court does theirs. it is often in the last moments be supreme court is called in, when other courts have done
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their work. when i was a law clerk, we always had to have a clerk there until the decision was made, often in the middle of the night. we were instructed to call justice marshall at home, although the other justices were home, too, to render his decision. even though he and justice brennan always voted to stay every execution, we still had to call them, wake them up and say, now is the time for your vote. they would say, you know my vote. we did what needed to be done. calls. 10 minutes left to go in our conversation. justin, clifton park, new york. caller: i wanted your opinion on the death penalty regarding military law versus civilian law. is there a difference? and what is high treason and
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treason? kent: the military has a different review system from the civilian courts. the law being applied as far as penalty is pretty much the same. i don't think anyone has been convicted of treason in a long time. susan: gary in newport beach, california. welcome. caller: my question has to do with the moral standards and compassion and the controversy over means of executions. this has to do with, can states be held accountable for applying inhumane methods of death penalties? and i am trying to put into context criminals in a small population.
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the previous caller remarked as to whether or not we can execute people with the way they put down animals, or give them carbon monoxide, or something like that. and the extensive focus we as a society put on this matter -- i want to put this into the context of another small population of citizens who are innocent. they are administered drugs in hospitals that are known to be fatal. manufacturersug don't do a very good job of filtering out people who have adverse reactions, these citizens and depth dying a very upnful and apprentice -- end
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dying a very painful and arendt's death, kind of like a long, drawnout execution. there are no protocols for putting them down and ending their suffering. susan: gary, thank you. the basic question is can states be held accountable for the methods they use to administer the death penalty? carol: be held accountable for the methods they use to administer . in recent years, the supreme court has decided two cases that challenged lethal injection protocols, neither of which courts found a problem with. neither of those cases had justices dissenting from it. the supreme court has just in this last month granted review on another case from missouri about whether an inmate there who has a serious medical condition that will make the lethal injection particularly gruesome and painful, whether that is constitutional. we will appear again from the
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supreme court soon on this issue. susan: we have had wonderful tweets from all of the debated consequences of the death penalty. kent: it does. that is a good reason to be thorough and complete in the reviewing of the conviction of guilt and the actual guilt of the defendant. susan: you have talked about how many times the court has revisited this. there was a case versus ohio in 1978. what was important about that? carol: the supreme court expanded on its holding of the rejection of the mandatory death penalty. the court required that juries hear any and all mitigating evidence that might lead to a sentence less than death.
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a woman was driving the getaway car of two robbers, one was her brother. she was out in the car and did not participate in the shooting of a business owner. even though she was offered something less than murder she , rejected it and ended up getting the death penalty. the supreme court said of the statute did not allow the consideration of her age or the lack of a prior criminal record that prevented the things it needed to hear in that case. susan: what do you want us to know about the kemp case? kent: that was a study conducted on the discrimination of the death penalty, conducted on behalf of the naacp. it was a study that looked for discrimination on the basis of the defendant's race, and did not find it. it claimed to have found
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discrimination based on the race of the victim, but there is the argument the study did not prove that, quite the contrary. in that case, it went up on appeal on the assumption the study proved what its author said. the supreme court said you cannot win a case on those global statistics. you have to show discrimination in a particular case. susan: two more cases. 2002, a 6-3 decision declaring unconstitutional executions for those with intellectual disabilities. in the, a 5-4 decision simmons case declaring , unconstitutional executions for victims committing crimes under the age of 18. we will close by having you listen to justice blackmon talking about his view on capital punishment. [video clip] >> did the death penalty change at all over the years, or remain the same? >> i think it remained the same.
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i was willing at that time to rely somewhat on legislative judgment. if the states wanted it this way, through the expressions of their legislature, they were entitled to have it that way. anally, in the commons case year or so ago, i still felt the same. but i looked at it from the point of application of the death penalty. it could not be administered and applied in line with equal protection and due process. interviewer: do you think at the time you had more faith in the fair administration of the death penalty? justice blackmon: letting the states have a try at it, that
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was obviously a mistaken position to take. in my later years, i was convinced they could not rationally apply it. susan: there was one justice, making an intellectual evolution in his position on the death penalty. we have about a minute left for each of our guests and a closing argument on this very important topic our country has been grappling with since its founding. where do you see this debate going in the united states, specifically with the regard to the legality and constitutionality of the death penalty? carol: the use of the death penalty in our country in the last 20 years has fallen off a cliff. we were seeing 300 sentences a year and almost 100 executions in the mid-1990's. today, we have maybe 30 death sentences a year and maybe 20 down 90%, 80%, from
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the peak in the 1990's. it shows the direction our country is moving in. i think the death penalty is withering on the vine. susan: kent? kent: we have executions for two reasons. we have murderers, and prosecutors and juries are being more selective to seek and impose the death penalty. i think the support for the death penalty in the very worst murder cases remains solid. i think the constitutional question was correctly answered in gregg vs. georgia. as far as the constitution goes, that should be the end of it. susan: this is our 12th case this season in "landmark cases." a special thanks to the national constitution center for their help in selecting the cases featured this season, and also to suggesting some of the guests we bring to the table. thank you for the comments and tweets tonight. thank you for being here.
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[captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] announcer: on "landmark cases," and, a white male was twice rejected to the you think -- uc davis medical school.
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he claims he was rejected in favor of less qualified minority applicants and took the decision to court. court upheld the constitutionality of affirmative action under the 14th amendment. our guests to discuss this --ved as acting u.s. general a solicitor general in the obama administration, and a professor at the georgetown law center, a libertarian and original constitutional legal scholar and commentator. cases," nextrk monday, at c-span. and join the conversation. we have resources on her website for background on each case, the "landmark cases" companion book, and our podcast at csp cia director mike
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pao now serving as secretary of state, the senate intelligence committee meet this week -- meets this week to consider the wheretion of gina haspel, she is currently serving as acting director of the cia. be theirmed, she will first woman to lead the intelligence agency. we will have live coverage of her confirmation hearing wednesday at 9:30 a.m. eastern on c-span3. you can watch live on or listen on the free c-span radio app. connect with c-span to personalize the info you get from us., and sign-up for our email. the program guide has the most updated primetime schedule and upcoming live coverage. the word for word gives you interesting daily video highlights, with no caps on terry -- with no commentary.
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book tv is an insider look at upcoming authors and festivals. the american history television weekly newsletter if you upcoming programming exploring our nation's past. visit and sign-up today. >> here is a look at our live coverage tuesday on c-span. the house is back at 10 a.m. eastern for general speeches. is a smallda business cyber security bill and a resolution that would overturn the consumer financial protection bureau. a.m., thetwo at 10 energy and natural resources committee in the senate takes a look at the puerto rico electric grid. and then the senate returns to debate a court of appeals nomination. on c-span3, former vice
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president joe biden is among the speakers at a morning long discussion about the economy and middle class. that is followed by a senate appropriations subcommittee. the afternoon, with homeland security secretary kiersten nielsen. nielsen.n a," -- "qon "two and and a," the lifetime of two conjoined twins. two married couples cannot be in the same bed. up twoalso how they set seaprate households, one mile from each other. they had a rigid schedule.
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theyu would live in one house for three days, and during these three days, cheng can do whatever he wants in the house and the other will give up his free will. three days later, they move to the other house. then he will be the master and cheng will give up his free wil. ll. >> did it work? >> apparently. they had 21 children. >> first lady melania trump unveiled her platform at a ceremony in the white house garden on monday. the be best campaign


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