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tv   Landmark Cases Gregg v. Georgia  CSPAN  May 12, 2018 6:59pm-8:33pm EDT

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business foundation, i am a professional fellow as a tell people. i have a piece in wired magazine on the sprint/t-mobile merger coming out tomorrow. peter: please come back. robert: >> c-span, where history and holds daily. c-span was created as a public service by america's cable television companies and today we continue to bring you unfiltered coverage of congress, the white house, the supreme court and public policy events in washington, d.c. and around the country. c-span is brought to you by your cable or satellite provider. >> tonight on c-span, landmark cases takes a look at gregg versus georgia, which upheld the use of the death penalty.
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then, ted cruz and john cornyn are among the speakers at the nra in will leadership forum. later, first lady melania trump announces her official campaign on the well-being of children. >> the u.s. supreme court today ruled that the death penalty does not necessarily represent cruel and unusual punishment. that it can be a deterrent to crime. by 7-2, 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 lawsuit ♪ >> all persons having business before the supreme court of the united states are admonished to give their attention. >> landmark cases. c-span's special history series produced in partnership with the national constitution center.
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exploring the human stories and constitutional dramas between 12 -- behind 12 historic supreme court decisions. >> mr. chief justice and may it please court -- ♪ >> good evening, welcome to c-span's landmark cases. tonight, the death penalty and the case of gregg v. georgia in 1976. it was a complicated case. it did not settle the death penalty debate, which has been going on ever since. tonight we will talk to people who spend a lot of time thinking about this. what the mood in american society was like, and what legacy of these decisions have been.
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let me introduce our first gue s t, a co-author of a book about the supreme court and capital punishment. of anher guest is part organization that advocates for a swift criminal justice system. welcome. as we start out, the supreme court has considered many cases on the death penalty. what is it about gregg v. georgia that makes this a landmark case? >> the court squarely confronted the question of whether the death penalty is constitutional or not. most other cases involve particular procedures and statutes. this case did squarely grapple with the fundamental question of constitutionality of the death
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penalty. susan: what else do we know what about this? >> previously, the court struck down capital punishment as it was then practiced in the united states. so it abolished capital punishment. had the court not backtracked and reinstated the death penalty, the united states would've a polished 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, and we would not be in that situation had the decision not been overturned by gregg. susan: in this series 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 on a
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presentment by grand jury, nor be deprived of life, liberty, or ofperty without due process law. also, there's the 14th amendment. no state shall make 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. finally, the eighth amendment, says excessive fines that shall not be imposed nor cruel and unusual punishments inflicted. case, were all of these amendments under consideration? >> because the court was decision,ing the mostly that eighth amendment was at stake. that was the amendment that was set aside. the eighth amendment only applies to the states as opposed to the federal government through the due process clauses.
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-- process clause of the 14th amendment. the eighth and 14th were in play in 1976. >> the additional reason, the due process and protection clause arguments have been considered before by the supreme court in 1971. the court had been upheld. host: we're going to 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. >> what about the practices followed at the time of the founding? ear-notching, pillorying. would you find they were constitutional? >> constitutional and stupid. there is a lot of stuff that is constitutional and stupid. that cannot be the test.
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>> the word "cruel" and "unusual," it is possible over time you will have a different idea of what is cruel. that doesn't mean this thing isn't cool -- isn't cruel because someone in the 18th century thought it wasn't cute >> he wanted to change its meaning. he thought it was a one-way street. we get more gentle overage, not more cruel. but it is not a one-way street if you think -- not a one-way street. whatever you think is cruel 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. is that all the eighth amendment means?
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to thine own self be true? don't do anything you think is cruel. we have our own notions of cruel. that cannot be what it meant. it was 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, 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 the constitution was ratified. analogy think of an such as this one, suppose your great-grandmother left a bequest in 1930, her children and her children's children to use the money to eat healthy food.
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back in 1930 or so, healthy food was red meat, whole fat dairy, and eggs. suppose today you are trying to request, toto that use it for a healthy food, might not 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 running of the founders of the constitution what they put into this amendment, what they thought cruel and unusual meant? on that tapealia was a bit of an outlier, that was not the argument of that defenders of the constitution as far as what the founders meant, i think they were using a term that was understood in english
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law. unusual meant outside the normal uses of the law. i think unusual can change over time. 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 a different thing sayinge saying -- from the court can decide on its own if something is cruel and unusual. >> the death penalty has been part of our societies since the earliest recorded execution. it was in 1608 in jamestown. captain george kendall was executed right a firing squad for spying on behalf of the spanish. to learn more about history of the death penalty in the united states, we visited the alcatraz east museum in pigeon forge, tennessee.
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we learned more details about capital punishment over the centuries. >> the crime museum is located in tennessee. we used to be an washington, d.c. capital punishment has always been working through an effort to make execution more humane. in our capital punishment gallery we have discussed methods used in europe, burning at the stake, beheading, drawn and quartered, all of those gory things. coming to the united states, first it was hanging. 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 until 1960 in 125 executions. it was made from wood from the former gallows and made by the prisoners.
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the electric chair is often sort of a joke, but it is true was developed by a dentist. modifying a dentist chair. because he felt that using the modern invention of election commission would be more humane than hanging. the first electrocution was in 1890 in new york. a man 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
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1924. it byirst tried using filling a cell of a prisoner slept.s as he because it was not airtight, the air escaped and it was not exactly say for the prison guards and other employees, so they worked a lot at refining the method. it never really caught on, partly because of the danger posed to witnesses and guards. guards were not really comfortable with that. and it took a lot longer. it never fully replaced the electric chair. electric chairs were used commonly as an alternative. susan: later we will return to learn more about later methods of execution in the united states. before we talk about the supreme court cases prior to this one, i
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want to tell you about involving you in the discussion. we would very much like your participation with questions or comments about the death penalty. if you live in the eastern are you can reach us at the numbers on the screen. you can also send us a tweet. and three cases of note, earlier punishment cases. what should we know about earlier cases? and appointedired lawyer for indigent defendants facing capital punishment. the other case, as i mentioned
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earlier, addressed the question of whether the system of unguided discretion in juries, 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 favor, and was found in of upholding those systems. yearn came along the next and was accepted by a 5-4 margin. susan: what was happening to public opinion in that short time? that the court was taking of these cases and changing its 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.
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countriesr peer abolished the death penalty in the 1960's and that was that beginning of a strong movement in europe and elsewhere to abolish the death penalty. so, the gallup polling organization showed that for the first time in history, more people opposed the death penalty than supported in 1966. i think 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 homicide rates, you see they tend to rise and fall together. susan: the question for both of you, the justices will always tell you they are immune to
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public opinion and some of them tried to not follow the news, but in fact, especially in this case, do they really take the temperature of the american public as they are deciding these cases? >> claim sure they do and i think particularly when they are deciding cases under the eighth amendment, which deals with cruel and unusual punishment, previously the test was whether it violated the evolving markards of decency that the progress of an evolving society. so it was under the eighth amendment that the court took the temperature of prevailing attitudes. susan: what is your opinion? >> the court does take into consideration and did take into consideration in the opinion the legislative reaction to furman. in the facsimile states and reinstated death penalty laws, i
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thought that was an important gauge of what is considered acceptable. susan: how many states reacted? >> 35 states. >> there was actually a backlash to furman in the 1970's. i think it was the timing of that decision that the court had come to its decision about the death penalty at a time of greatly rising crime and fear of terrorism. i think had the court had made the same decision during a different time, we may not have seen the same kind of backlash. susan: we're going to look at the five cases joined together in these rulings, but before we do, let's hear from some callers. from orlando, on the air. caller: hello. great program. i wanted to know, does a
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person's legal status have any bearing on whether they can be executed in our country? thank you. >> legal status. you have to be convicted of murder and whether you have a prior conviction in some states as one of the qualifying circumstances, if that's what you mean by legal status. susan: brunswick, georgia. 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 mete out there punishment. what did those numbers really
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tell us about the cost of the death penalty? >> it turns out to be the opposite. i suppose there was a time in history when it was less expensive to have the death penalty than to have life in prison, but many states have studied their capital justice systems and it is clear that it is far more extensive to have capital punishment meant to have life imprisonment, even when you take into account the cost of incarcerating someone for life. much more expensive. i think that is part of why we have seen such a declining use of the death penalty. it is extraordinarily expensive. susan: is it legal challenges? carol: much of it has to do with the required process that grew out of the gregg decision and what 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
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regulation of the capital justice process. since 1976, the supreme court has taken an ongoing role in making a lot of rules, constitutional rules to structure the capital justice process. what is yourn: organizations who? -- organization's view? >> many of the studies are flawed. figures are disputed. as far as the cost of the links of time, many of the procedures we have take too long. the failure of ports to comply with laws congress has already passed to expedite those procedures is a big part of the problem. so the whole cost argument is very complex. susan: i should say that the these are carol:
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studies that have been done by the states themselves, not partisan groups. these are states trying to understand how much they are spending. the state studies have revealed the tremendous cost. susan: we have a viewer who wants to clarify the question. the caller asked about legal status, he met legal citizenship. is there any difference in the law? it does not matter country of origin. florida, go ahead please. 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. susan: thank you. with regard to the military death penalty, the president rather than congress can specify some of the requirements for the death penalty.
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that was a case called loving versus the united states and the decision was, yes, the united states was valid. susan: do you know anymore about that? carol: the military death penalty is subject to the same constitutional roles as the death penalty in criminal courts. susan: someone convicted in a military court has the same right of appeal? carol: yes. susan: let's go into the five cases involved. the --rgia case, which which gave the entire decision its name. two men were out hitchhiking. gregg and another man were hitchhiking and picked up. one of the men had a wad of cash on them. the men saw. at one point, they decided to
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take a pitstop on the side of the road. as they came back up, they took the car and wad of money. the other case is a case from florida. it was a burglary in which a man stabbed a homeowner through the heart with a butcher knife. not too many details are known. at least not in the opinions. the third case, a man had expressed a desire to have sex with young girls. he kidnapped 18-year-old girl, wendy adams, driving her away from a public park screaming he took her to the river, and what happened there is in dispute, but he strangled her and threw her body in the river. susan: and there are two other cases. was convicted of
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murdering a gas station attendant named richard lowe in lake charles, louisiana, in 1974. james woodson, in north carolina, was convicted of playing a part in a murder. his part was to drive the getaway car. it was his codefendant who robbed a store and killed a store owner in north carolina. under the law of north carolina, at the time, 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. it was never given to a jury to decide whether there would be a death penalty delivered in those cases, it was mandated by statute if you are convicted of
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a capital crime you would automatically be sentenced to death. susan: so what is the difference in the two states? versus the other three? 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 together in a block? carol: that is quite unusual. kent: i don't know of any other case. susan: do we know why? to get abably i think spectrum, because there was a variety of legislative reactions. the furman case had left the court confused because it had five separate opinions. nobody really knew what the law
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was or what was required, permitted. so there was a lot of different laws in different states. they wanted a spectrum. susan: we're going to move on to the court and we will mix in some more calls. court ine on to the 1976. eisenhower appointees include william brennan and powder stewart. marshall was a johnson appointee, nixon appointee, chief justice warren burger along with harry blackmun and ford appointee, and president ford was in office, john paul stevens. the oral arguments were heard over two days, march 30 and march 31. they had more than four hours of arguments. is that surprising considering the number of cases?
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kent: it reflects the number of cases. you have prosecution and defense attorneys for each case and then defendants. susan: a question for both of you, what was the overall attitude of the berger court toward criminal justice cases? court establish a worldview during its time? carol: many people talk about the counterrevolution wrought by the berger court. the warren court had been known for establishing many procedural protections in criminal cases, such as miranda warnings, the application of the exclusionary rule when states unconstitutionally seized evidence, the right to a jury trial, which had not been
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mandated until 1968, the requirement of a right to counsel in all serious criminal cases, which had also not been extended to all states. so that was the warren court procedural evolution. the berger court tried to walk that back. susan: what are some of the criminal justice cases the court took on that established its reputation? itt: well i don't think qualifies as a counterrevolution . they did not push much further. i think the cutbacks were fairly mild after the huge change in the war in -- the warren court era. the good faith exception to the exclusionary rule, for example. we saw some exceptions to the miranda rule, but the main miranda rule is still there.
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there are some movements in the other direction but not a huge one. not a revolutionary change in direction. susan: let's return to phone calls. ohio. caller: my question to the panel, should the supreme court even be reviewing the death penalty as unconstitutional? under federalism, shouldn't that be left to the states as to crime and punishment outside the realm of the federal government? the 14th amendment did make a change in that regard and provide some degree of federal process thatstate hadn't been there before, but i think the constitutionality of the death penalty have been established.
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carol: the constitution does address punishment. there cannot be cruel and unusual punishment but it does not give us much guidance. that leaves it in the hands of the justices to interpret. which are admittedly what they call the majestic generalities of the constitution. the due process clause, equal protection clause, the unreasonable search and seizure clause. none of these things are self defining. the core has to do its best to give them meaning. susan: next up, alabama. welcome. are you there? to move on to portland, oregon. caller: hi.
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i'm coming at the death penalty mym an unusual angle in that father was murdered by his second wife. it was at breakfast one morning, she shot him at the base of the skull while he was eating. she was convicted of murder and sentenced to six years probation. this was primarily because of his abusive nature. when this occurred i began studying the death penalty. having had the advantage of a cousin who was a federal judge for a while, i got a lot of insight into the question. mehas become apparent to that a reasonable person would
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take anybody who has committed whata crime and find out the creating factors were, that is to say what environment did they mature in that would enable , andto commit such a crime look for ways to avoid forreating the environment the future. susan: thank you for telling us your life story how old were you? caller: 38. kent: i think to the extent that you want to change the circumstances for people in the future, that is a worthy thing to do. but the crime has already happened, and the question of how to punish it is a different
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one from how to prevent it. carol: i think studying death row is a window into what poverty and deprivation breeds in our society. that on death row, overwhelmingly the defendant to end up there are from the poorest of the poor families. often with cognitive impairments, untreated mental health conditions, the subject of often horrific childhood neglect and abuse. if we want to prevent their crimes, i think the color has a good point, we might do well to address those conditions. susan: josh, nice to hear from you. caller: thank you. my question is do you think the court risks losing its credibility when it reverses
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itself in such a short time? i can think of one other example of a reversal in a three-year period. do you think they risk losing credibility? carol: i do think that is an issue. i think kent has a point. it was very hard to know what furman meant. they invited the states to do precisely what they did, pointing out that the supreme court seemed most concerned about the absence of direction to juries in applying the death penalty. so the court in 1976 did not really have to overturn any particular holding that garnered
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five votes in 1972 because nothing really gardnered five votes in 1972. i think we look back now and save the court abolished the death penalty in 1972 and reinstated it 1976 but i think at the time it probably looked more complicated than that. kent: and i think it has been a continuing problem. the court has contradicted itself. it has contradicted cases in this group and contradicted itself several more times. it is hard versus to build a lasting and just system of capital punishment when the supreme court cannot agree with itself from one year to the next, on what the constitution requires and forbids. that has been the biggest single problem of capital punishment. carol: here is something we agree on, the court has just been all over the map with capital punishment. of what iss mind
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required, permitted. susan: do have a sense of why they struggle so much with it? carol: i do think from the very get-go, there were different wings on the court, there were justices brennan and marshall. they had a clear position that the death penalty violated human dignity, they said. then you have chief justice burger and other justices who said really, we have no business saying anything to the states. getting into this regulatory position, because they should just be free to have the death penalty as they see fit. then there was the center of the court, which gets us to gregg. the three justices that got together to form the plurality in gregg. they tried to mediate between oles and took a meant
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it, don't end it approach. they needed the abolitionist vote or the leave it all alone vote. they had to keep swinging back and forth between these two poles to do anything with the death penalty. that has led to a set of cases that it is very hard to make much sense of. susan: james is in iowa. welcome. caller: thank you. my question is with the growth of lethal injection, i am aware of the challenges based on the compounds that are used and what i'vee never understood is, seen many animals put down with substances that any veterinarian has that are very quick acting
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and painless. why did the states use these exotic compounds? when they just change it over to what veterinarians use? kent: they have, but there is a problem. the pharmaceutical industry has become very international and some of these compounds are imported. the companies from europe have to not allowessure the use of these products for that purpose. the states can still get compounds and do, but it is essentially the same process, but there's a problem with obtaining the drugs. susan: next, were going to listen to some of the arguments in the case. i am struck by your description of the blocks that existed in the courts. there were essentially mindsets about capital punishment. how much did the oral arguments matter? carol: that's a good question.
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i think often they do not matter. i think often the justices have made up their minds ahead of time. but i think sometimes they do. i had experiences when i was a law clerk that it was quite clear that oral argument did make a difference. susan: we heard you filed a lot of the briefs, what role do they play? kent: most cases are primarily decided on the briefs. i won't deny there may be cases where oral arguments make a difference but i think that would be the exception rather than the rule. after listening to the audio of all these arguments, i doubt the oral arguments made much difference in this case. susan: let's listen to the georgia argument. the attorney argued on behalf of troy gregg. the state was g
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thomas davis, george's -- georgia's attorney general. let's listen to this. when we come back, carol we will ask you to tell us what you have heard. let's listen in. prior record. tted 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. he is under it today.
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susan: what did you hear this argument? carol: what the lawyers are arguing about is whether georgia had done a good enough job to respond to the concerns that the court had expressed previously in furman.
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you have to understand that prior to the decision, the way capital sentencing looked in the united states, is that juries were given absolute and complete discretion. at a capital trial the instruction to the jury would be you have heard the case, now it is up to you to render a sentence and whether to give the death penalty or a sentence of life in prison or even a term less than life, that decision is in your sole discretion according to your conscience. the jury was given nothing at all to guide it. that was a understood to be the key problem in furman v. georgia. standardless discretion. a georgia statute said you needed to find one from a list of aggravating factors. the murder took place in the course of another felony, the victim was a police officer, something to make the crime
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worse, and then the jury was to consider whether there were any mitigating factors that called for sentences less than death. the lawyer for georgia was saying that was enough. the lawyer arguing on behalf of gregg was arguing that it was not. he was pointing out something crucial, the statute only actually dealt with the discretion the jury had in sentencing. it did not deal with the discretion that prosecutors had. if there was a problem with the discretion, the statute only addressed one piece of it. susan: anything to add? kent: it is kind of strange. i think we will hear in the next soundbite as well. if you hear lawyers arguing that a statute is unconstitutional because the actors in the system have too much ability to spare someone from the death penalty, because all the years since, we have been dealing with the exact
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reverse argument, that there is not enough discretion. it's like you are in a bizarre world was made to this argument, it is quite opposite to what the fights have been about ever since. susan: let's move on to our second bit of oral argument. this is the louisiana case court the lawyers on arealf of stanislas robert anthony amsterdam. and also the district attorney, babbitt. amsterdam was the attorney in the furman case. kent: 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 other
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attorneys. susan: let's listen to a portion of the oral argument.
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susan: we are going to start with you this time, what to do here in those argument? in the description of the louisiana statute, what the attorney for the state is saying is that the jury can return a verdict for a lesser degree of offense than first-degree murder. i think that is probably one of the main reasons the louisiana statute was struck down. you really cannot eliminate discretion from the system. if you squeeze the blue one place, it pops out somewhere else. if the jury can return a verdict when they know it is really first degree just to avoid the death penalty they can do that. but that is arbitrary. that's why the mandatory statutes did not succeed. 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.
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susan: what's interesting -- carol: what's interesting is you here for the first time in the argument that death is different. death is different from any other kind of sentence of imprisonment, even for life, 100 years, it is different in ty,erity in finale -- finali and that is something the court has used over and over again in the years since 1976, making special rules for capital trials that do not apply in ordinary criminal trials. susan: let's go back to our viewers. here is a tweet. perhaps this follows on what you just said, carol. a viewer asked has there been a case where the punishment was too lenient and yet found to be cruel and unusual? unusual apply only to the punishment or the
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societal view of justice for the crime? carol: as far as i know there has never been an idea that something could be too lenient. and think it could be described as cruel if it was too lenient. no, that has not been applied in that context. kent: there is a relation between what is constitutionally cruel and unusual and what society views as a proper punishment for the crime. there is a disproportionality aspect to these cases. susan: following on your comment that death is a different, a true thats, is a prison is kinder than the death penalty? carol: it is not entirely clear that prison is kinder. many jurors when they are being questioned often say that life sentence,is a crueler
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that the incarcerated would have to dwell on the harm that they did. i think there is some debate about that. about which is a worse sentence. although most defendants seek to have their sentences become set aside and become life sentences instead. i think that indicates that for people who are facing the prospect, most of them would prefer to live, even in the conditions that life imprisonment takes place under. kent: almost all do. there are very few, we call them volunteers, who want to drop their appeals and accept their fate. when they do that, there is a swarm of people rushing into court claiming they are mentally incompetent because they want to do that and they are therefore not able to drop their appeals.
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goodnk it's not a very argument to say life in prison is worse. welcome to landmark cases. caller: i was wondering what you guys thought about the trump administration calling for the death penalty for drug offenses? happen. is not going to 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 required to do that. they will make more effective use of their authority. it requires a death but not a murderer. so it could be an overdose deaths. it is hard to know whether to take attorney general sessions at his word that this is what he wants the justice department to
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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 repressive regimes around the world where drug dealers are routinely executed. susan: next is a call from missouri. caller: hi, i have three quick points. one, if you are white and rich you almost never get the death penalty. so it is inequitable. second, there is no evidence that capital punishment is more of a deterrent than life in prison. european countries that did away with capital punishment have low homicide rates. my state of missouri, is the fourth highest homicide rate in the country with the death penalty state. finally, there is a big study by the national academy of sciences
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couple of years ago that shows that almost certainly innocent people have been put to death. i would like reflection on those points. susan: thank you very much. kent: let's see. as far as the deterrence go, there is evidence of deterrence, it is disputed. experts disagree as to help persuasive it is. it certainly has not been proven it is not a deterrent. as far as the execution of innocent people, i do not believe it has been definitively demonstrated that the executed people have been executed. the first point, rich and white people have been sentenced to death. we have a new jersey case that a person who was a big-time political player was convicted and sentenced to death. he got off death row when the rules changed. he was not executed but he was
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sentenced to death. susan: anything more to add? carol: i tend to agree. i think the viewer obviously has read much of the evidence that supports those points. in 2012, the national academy of sciences did an overarching review of all of the studies about deterrence to try and determine if there is a deterrent effects. ultimately they said none of the studies alone or together make out a case of a deterrent effect, but they also said that it does not make a case that it does not exist. we are stuck in a place where we , but the claimed evidence of a deterrent effect has been essentially debunked by this expert. kent: debunked is too strong a word. there is legitimate expert disagreement. susan: franklin, tennessee.
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welcome. are you there? caller: i'm here. my question is, with the use of the guillotine, would that be cruel and unusual punishment? kent: it would certainly be unusual. [laughter] kent: i do not think anything like that will come back in the united states. susan: george in pittsburgh. caller: i was wondering if the term unusual has to do with the execution of the punishment or the ability to charge someone with the penalty? carol: it's unclear whether the words cruel and unusual me to separate things -- mean two separate things.
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cruel whatever that is, were unusual, whatever that is. the court has never really made clear. it often talks as if it is one thing, cruel and unusual. other times, they try to parse each word. susan: let's move on to the court decision in this case. they announced it on july 2, 1976. it was a seven-to decision that the death penalty did not violate the eighth amendment and georgia, florida, and texas laws were constitutional. 5-4 for the louisiana and north ,arolina cases unconstitutional. so -- well, let's listen to
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another news clip, this is from nbc nightly news announcing the decision to the public. [video clip] >> 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 swung around. 71% said they wanted it restored. today, the supreme court agreed. susan: going back to that question about the court being influenced by public sentiment. what do you have to add? kent: the polling might have had some influence, particularly the sharp jump in support after the furman decision. i think it was more the legislative reaction than it was the polling. the next bit by 35 legislatures
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and congress in four years is a tidal wave of legislative expression. if were going to talk about what is unusual, and the court indicated in the opinion that this powerful legislative reaction is almost a trump card against the argument. that this is somehow contrary to the views of the american people and our contemporary moral standards. if you don't look to our moral standards, which you look -- where do you look? 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. sometimes it is hard to get five justices to agree with the reasoning of a judgment. there are nine judgments -- judges on the court. can only -- the court
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affirm or reject the lower court, but the justices don't carol: i would say that's the -- susan: here is a little of what the plurality said. in a four years since furman was decided, congress and at least 35 states have enacted new statutes providing for the death penalty. and you would say. 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 death penalty evolved in america before furman, mandatory death , sentences were virtually unknown. these two states, along with california and new york and the congress, enacted mandatory laws not because they thought it was good policy but because they interpreted furman as requiring it. the court wrote the country an
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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. 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 were part of the block who 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 dissent.
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i never thought it was a good argument. justice marshall says, it is not 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 clearly 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 classes, it turns out to have been true of his colleagues on the bench. justice after justice who has dealt with the death penalty have changed their views about the death penalty, including some of the major players in
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gregg, including justices stevens, powell and blackmon, to -- who all played a role in the majority in gregg, bringing the death penalty back. they later said they agreed with justice marshall that the death penalty was on unconstitutional. marshall's idea that those who know the most about the death penalty will come to see that it was not to be supported has a lot of weight on the court. susan: 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." let's take a look at the new picayune.mes how big was this case? 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. it was a big deal for sure. 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. gregg, the prisoner in texas, and williams in florida remained on death row. back to calls. kerry, franklin, tennessee. go ahead. kerry, are you there? i know you're watching the television. it is time for you to ask the question. if you are ready.
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sorry about that. we will move on to earl in ottawa, illinois. caller: what is the average cost of appeals for a death row inmate? i know back in 1989, eight was $1.1 million. what does it cost now? kent: i don't know that the cost for appeals has ever been specifically calculated. it would be difficult to calculate so 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. i am going off of one webpage that there has been 162 since 1976. illinois has the highest rate of
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overturned convictions, because they found the system was faulty. 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: there is a difference. the earlier 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. even then, those are cases where the conviction was reversed and the person was released which is
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a different claim than people being executed who are in fact innocent. susan: we're talking about the case of gregg vs. georgia and 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 heinous murders, getting closure knowing the murderer will never be able to commit murders again. we had a case in texas where a
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man committed three murders, he had been released twice and recommitted. with the death penalty, the 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.
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victims are quite varied in how they view a death sentence and what it will do for them in 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 see these cases carried out. the long dragged out appeals do not need to be as dragged out as they are, and that is an important part of our work. to try to bring some kind of more 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?
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for example, saudi arabia, where justice is swift and sure. as i understand it. 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.
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that was an interesting international study that seemed to suggest having the death penalty or not was not what was 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, a death row inmate whose 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.
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suspecting a hoax the reporter , called the warden of the maximum-security prison. although a check showed all men 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 monday were all accounted for. three surrendered in north carolina. the badly beaten body of the fourth was found in a nearby river. susan: so an unhappy life came to a violent end. what is interesting is that 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 is still alive and he has been denied parole 17 times. roberts was released from prison. he owned a career counseling
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service in baton rouge, louisiana. he owns a home in appaloosa. charles william's sentence was commuted to life in prison 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. is there anything we can take away from these people's lives? carol: one take away is that 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. that is the last court of , appeals to look at the case. it illustrates that capital cases receive a lot of closer scrutiny than other cases. i suspect if he hadn't been sentenced to death, he probably not 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 probably remember the case of gary gilmore, the first person executed following the decision. he met his death by firing squad
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. with the state at large, 31 states have the death penalty today. 4 have a governor-imposed moratorium. 19 states do not. here are death row statistics. since the gregg decision there , are 1474 convicted criminals who have been executed. at the end of 2017, 2,817 are awaiting execution on death row. so far this year, nine people have been executed in states across the united states. 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
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buttons they push to release the drugs. they don't know which one of them is actually really -- releasing the lethal dose. scientists are always looking for new ways to improve on the electric chair. the fact that the lethal injection machine renders the victim unconscious before death was considered a way that made it 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
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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 are being experimented on, that there have been 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. before we go back to calls 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 federal, and from there, a case
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can go straight to the supreme court without having to go through the lower federal court first. after 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. susan: we hear these dramatic stories of the 11th hour, when a single justice reviews whether or not an execution goes forward. how does that work? carol: a lot of decisions that need to come before the supreme court, the lower courts have to finish their review before the
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supreme court does theirs. it is often in the last moments supreme -- that hthe court is called in, when other courts have done 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. susan: back to 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.
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is there a difference? and what is high treason and treason? our people put to death more in military or civilian? 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. the penalties that are imposed are similar. 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?
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and i am trying to put into context of criminals reading a very small population. 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. because the drug manufacturers don't do a very good job of filtering out people who have adverse reactions, these
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citizens end up dying a very painful and horrendous death, kind of like a long, drawn-out 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: they can. in recent years, the supreme court has decided two cases that challenged lethal injection protocols, neither of which courts found a problem with. each 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
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lethal injection particularly gruesome and painful, whether that is constitutional. we will hear again from the supreme court soon on this issue. susan: we have had wonderful 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. it said it is not enough simply to reject the mandatory death sentence but the court required
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that juries hear any and all mitigating evidence that might lead to a sentence less than death. that involved a young woman who was driving the getaway car of two robbers, one was her brother. they ended up shooting the owner. 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. to me the most remarkable finding of the study was they looked for discrimination on the
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basis of the defendant's race, and did not find it. it claimed to have found 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 2008, a 5-4 decision in the simmons case, declaring unconstitutional executions for convictions of 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 your personal feelings
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about the death penalty change at all over the years, or remain the same? >> i think it remained the same. 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. but finally, in the commons case a year or so ago, i still felt the same. but i looked at it from the point of application of the death penalty. i felt that 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
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states have a try at it, that 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
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executions, down 90%, 80%, from 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 -- our 11th of 12 cases 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 suggesting some of the guests we bring to the table. thank you for the comments and tweets tonight.
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thank you for being here. [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> monday, on the landmark cases, the university of california. a white male was twice rejected
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admission to the university of california davis medical school. he claims he was passed over in favor of less qualified minority applicants and took the university system to court. the decision struck down the university's admissions program and upheld the constitutionality of affirmative action. case,est to discuss this acting u.s. solicitor general in the obama administration and randy barnett, professor at georgetown. a legal scholar and commentator. live monday night at 9:00 eastern. join the conversation. @c-span.s
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tuesday morning, we are in south dakota for the next stop on the c-span bus 50 capitals tour. >> earlier this month, the national rifle association held its leadership forum in dallas. speakers included senator ted cruz and other advocates. this is just over three hours. >> all of us as americans share a common desire for safe schools and communities. achieving these goals does not mean we shift the blame for the acts of murderers and the government's failure to protect us onto the backs of good

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