NEW VOICES: Kenneth Starr and Other Officials Join Discussion of Death Penalty
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.
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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.
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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.
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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.