The Pew Forum on Religion and Public Life, togeth­er with the Federalist Society and the Constitution Project, recent­ly spon­sored a pan­el in Washington, D.C., exam­in­ing the appli­ca­tion, moral­i­ty and con­sti­tu­tion­al­i­ty of the death penal­ty in the United States.

The pan­el was mod­er­at­ed by Virginia Sloan of the Constitution Project and fea­tured Samuel Millsap, Jr., for­mer Texas District Attorney, William Otis, Counselor to the Head of the Drug Enforcement Administration, Kenneth Starr (pic­tured), for­mer Special Prosecutor and now Dean of the Pepperdine Law School, and Bryan Stevenson, Director of the Equal Justice Initiative in Alabama. Excerpts from a tran­script of the pan­el’s pre­sen­ta­tion fol­low (in order of speak­ing):

As the for­mer Bexar County dis­trict attor­ney in Texas and the head of the office that pros­e­cut­ed Ruben Cantu, Samuel Milsap urged vig­i­lance from his fel­low pros­e­cu­tors to ensure that inno­cent peo­ple are not wrong­ful­ly con­vict­ed:

I’ve come to the con­clu­sion — and it’s based not on the Cantu case specif­i­cal­ly but rather on oth­er things that I’ve seen hap­pen in the crim­i­nal jus­tice sys­tem — that the sys­tem as it relates to cap­i­tal mur­der is sim­ply bro­ken. It’s my view in fact that because it’s dri­ven by human beings and deci­sions that are made by human beings, it can’t be fixed, and that as a result what has to hap­pen is that the option to put peo­ple to death has to end. 

…
I would say to Justice Scalia, who said in his con­cur­ring opin­ion in Kansas v. Marsh that he knew of no inno­cent man who had been exe­cut­ed, that he needs to look only to the state of Texas, to my state. Cameron Willingham was cer­tain­ly inno­cent. In fact, in the Cameron Willingham case, there was­n’t even a crime. Carlos De Luna, the most recent, was prob­a­bly inno­cent. And the per­son I pros­e­cut­ed in 1985, Ruben Cantu, was prob­a­bly inno­cent. And it did­n’t mat­ter as far as I’m con­cerned in my posi­tion today whether Ruben Cantu was in fact inno­cent or not: the sys­tem sim­ply does­n’t work. What we see over and over again are sit­u­a­tions where wit­ness­es who have no rea­son to lie recant tes­ti­mo­ny and for good rea­sons.
…
I would say to the mem­bers of the jury in the Cantu case [ ] the fol­low­ing: you did your job very well; you did only what we as pros­e­cu­tors asked you to do. You made the only deci­sion that you could’ve made based on the evi­dence that was avail­able to you. You are not respon­si­ble for the exe­cu­tion of Ruben Cantu. I am respon­si­ble for the exe­cu­tion of Ruben Cantu as the pros­e­cu­tor who made all of the deci­sions that result­ed in the pre­sen­ta­tion of that case to the grand jury, all of the deci­sions as to how that case would be pros­e­cut­ed, and all of the deci­sions as to how that case would be argued and what we would ask the jury to do.

Dean Kenneth Starr talked about his expe­ri­ence rep­re­sent­ing two death row inmates and high­light­ed the impor­tance of clemen­cy in the fair admin­is­tra­tion of the death penal­ty:

[M]y own expe­ri­ence in recent years — in the Robin Lovitt case in Virginia … and in the still-unfold­ing Michael Morales case in California — sug­gest to me that gov­er­nors and their advi­sors are tend­ing to neglect this his­toric role of clemen­cy and par­don in the sys­tem.
…
Michael Morales’ case is illus­tra­tive of what I think is a ter­ri­ble trend, abject def­er­ence to the judi­cial sys­tem with its inevitable flaws and a frank unwill­ing­ness on the part of vir­tu­al­ly every gov­er­nor in the coun­try, and those who advise them, to ful­fill their assigned role in our con­sti­tu­tion­al struc­ture. This isn’t just a Supreme Court admo­ni­tion; it is tak­ing note of a con­sti­tu­tion­al struc­tur­al point.
…
And even in our blood­i­est war, which pit broth­er against broth­er, Mr. Lincoln took time to review per­son­al­ly the files of those seek­ing clemen­cy. It was part of his great­ness.

Bryan Stevenson, who defends peo­ple fac­ing the death penal­ty in the south, ques­tioned soci­ety’s need for cap­i­tal pun­ish­ment:

For the last 20 years I’ve actu­al­ly been rep­re­sent­ing peo­ple on death row, and I’ve spent too many hours next to peo­ple who are about to be elec­tro­cut­ed, watch­ing the hair shaved off their body before they’re put in the elec­tric chair or squirm­ing on lethal injec­tion tables and see­ing the tears and the anguish. And I believe that the death penal­ty ought to be abol­ished because it is cor­rup­tive. It cor­rupts all of us. It is cor­rupt­ing our courts. It is cor­rupt­ing pros­e­cu­tors. It is cor­rupt­ing police. It is cor­rupt­ing defense attor­neys. It is cor­rupt­ing jurors. It is cor­rupt­ing our soci­ety. I think that because I see so much evi­dence of it, so much pain and trau­ma. And it’s not just that we’re unwill­ing to talk about it. We don’t have the will in this coun­try to rec­og­nize what we have to do for peo­ple who are dis­fa­vored.
…
The death penal­ty is large­ly employed in this coun­try against the poor, the men­tal­ly ill, the vul­ner­a­ble, and so I say we do have to end it. And to me the ques­tion isn’t whether peo­ple deserve to die for the crimes they com­mit. The death penal­ty debate has been ter­ri­bly mis­aligned. It’s not a choice between the death sen­tence and no pun­ish­ment; it’s a choice real­ly between two kinds of death sen­tences. Most juris­dic­tions have life in prison with­out parole. It’s just anoth­er kind of death sen­tence.
…
And so in my mind this issue should not be just a ques­tion of whether peo­ple deserve to die, but whether we deserve to kill. We have tol­er­at­ed so much error, so much injus­tice, so much unfair­ness; we have a sys­tem that is dri­ven by pover­ty, that is under­mined by race.
…
And with that his­to­ry and with that aware­ness and with that con­scious­ness, I think it’s time for the death penal­ty to end. It’s time that we put this behind us so we can begin to deal with these vex­ing prob­lems of pover­ty and race and dys­func­tion and injus­tice.

William Otis spoke against the abo­li­tion of the death penalty:

There are two cen­tral prob­lems, I think, with a strict abo­li­tion­ist argu­ment. One is that it is a one-size-fits-all, don’t-pester-me-with-the-facts sort of posi­tion. It sim­ply does not mat­ter, under that posi­tion, what the killer did, how utter­ly incon­testable the evi­dence is of his guilt, how grue­some or cold blood­ed or cal­cu­lat­ed it was, how many peo­ple he killed, or how many peo­ple he killed in the past. None of that mat­ters. A posi­tion like that sig­nif­i­cant­ly over­steps the jus­ti­fi­ca­tions typ­i­cal­ly offered on behalf of the abo­li­tion­ist posi­tion: bad lawyer­ing, pos­si­ble racism in any giv­en case, that the police are hid­ing or man­u­fac­tur­ing evi­dence. All of those things can be gone over and are gone over in great detail and over a long peri­od of review in case-by-case analy­sis under the most exact­ing stan­dards that the law knows. But that is a far cry from jus­ti­fy­ing com­plete abo­li­tion in every case no mat­ter what.
…
The sec­ond basic, over­rid­ing prob­lem with out­right abo­li­tion­ism is that it sim­ply shoves off to one side what in any oth­er con­text is the accept­ed and indeed the uncon­tro­ver­sial max­im that gov­erns crim­i­nal pun­ish­ment, and that is that the pun­ish­ment should fit the crime.… It’s fine to give a long sen­tence to a car­jack­er, to a child moles­ter, to some­one who poi­sons kids — teenagers by sell­ing them dan­ger­ous drugs, for instance — but that is a dif­fer­ent kind of thing. It’s fre­quent­ly said in these debates that death is dif­fer­ent. It is dif­fer­ent and so are the crimes like Lawrence Horn’s and James Perry’s and Timothy McVeigh’s that bring about the death penal­ty. Let the pun­ish­ment fit the crime. 

(Event Transcript from the Pew Forum, July 21, 2006). See also Arbitrariness, Clemency and Innocence.

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