Tokyo, Japan
December 6 – 7, 2005

Next we would like to wel­come, Mr. Richard Dieter, Executive Director of the Death Penalty Information Center.

I would like to thank the European Commission, the American Bar Association and the Japan Federation of Bar Associations for invit­ing me to speak about the death penal­ty in the United States. I first want to say that our Japanese hosts have been espe­cial­ly gra­cious – I imme­di­ate­ly felt wel­comed here, and I want to thank you for that.

Today we are address­ing the cul­tur­al aspects of the death penal­ty, and the United States is cer­tain­ly a com­plex cul­ture, made up of many dif­fer­ent strands. It is dif­fi­cult to define exact­ly what moti­vates the death penal­ty in our soci­ety, or why this pun­ish­ment for crime is giv­en a spe­cial impor­tance by many peo­ple. What I would like to talk about today are some of the facts that illus­trate a dra­mat­ic change in the death penal­ty (and per­haps even in our cul­ture) that has been occur­ring over the past few years.

To under­stand this change, it is help­ful to review the recent his­to­ry of the death penal­ty. Ten years ago, in the mid-1990s, the death penal­ty in the United States was final­ly ​“suc­ceed­ing” at what it had been for­mu­lat­ed to do. The death penal­ty had been stopped by the United States Supreme Court in 1972 because it was being arbi­trar­i­ly applied. Many states, wish­ing to pre­serve the death penal­ty, then re-wrote their laws to meet the Court’s require­ments. The new laws were sup­posed to be care­ful­ly chan­neled so that only the worst offend­ers would be eli­gi­ble for the death penal­ty, there­by elim­i­nat­ing its arbi­trary qual­i­ty. The death penal­ty resumed in 1976, though exe­cu­tions did not esca­late quick­ly. There was one exe­cu­tion in 1977. The process was slow, there were many appeals, and some state laws were over­turned.

In the 1990s, the United States began to expe­ri­ence a death penal­ty sim­i­lar to that of the 1930s when near­ly 200 peo­ple a year were exe­cut­ed. The num­ber of exe­cu­tions went steadi­ly up, reach­ing almost 100 exe­cu­tions in 1999. The num­ber of peo­ple on death row kept ris­ing as more and more peo­ple were sen­tenced to death. New states, such as Kansas and New York, added the death penal­ty to their statutes. In 1994, the fed­er­al gov­ern­ment, which affects all 50 states but which had not been a sig­nif­i­cant par­tic­i­pant in the death penal­ty, expand­ed its cap­i­tal pun­ish­ment statute so that 60 offens­es were eli­gi­ble for the death penal­ty, instead of just one offense pre­vi­ous­ly.

Much of the pub­lic want­ed the death penal­ty applied more often and more quick­ly. Moreover, we had just expe­ri­enced a ter­ri­ble act of ter­ror­ism in 1995 by one of our own cit­i­zens in the Oklahoma City bomb­ing. In the wake of that, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 to speed up the death penal­ty, and the num­ber of exe­cu­tions con­tin­ued to rise.

The death penal­ty was sup­port­ed by 80% of the American pub­lic in the 1990s. But sur­pris­ing­ly, a dra­mat­ic peri­od of change began around the time of the new mil­len­ni­um. This would seem to be a very unlike­ly time for the death penal­ty to change in the U.S., giv­en the cul­tur­al events tak­ing place. In 2000, the U.S. elect­ed a pres­i­dent, George Bush, who as gov­er­nor of Texas presided over the most exe­cu­tions of any mod­ern gov­er­nor, 152 exe­cu­tions. He was not elect­ed because of those exe­cu­tions or because of his death penal­ty posi­tion, but the elec­tion cer­tain­ly sym­bol­ized that the U.S. was a coun­try that had no prob­lem with the death penal­ty.

We also expe­ri­enced anoth­er act of ter­ror­ism in 2001 – the attacks in New York and Washington, DC. These actions cre­at­ed a tremen­dous anger and result­ed in many pro­pos­als to expand the death penal­ty. But despite these events, and despite the rise in the exe­cu­tions in the 1990s, the increase in the size of death row, the high lev­el of pub­lic sup­port for the death penal­ty and its affir­ma­tion through the elec­toral process, the death penal­ty has been in a sharp decline since 2000. Executions are down about 40%. Last year there were 59 exe­cu­tions com­pared to almost 100 in the 1999. The num­ber of death sen­tences – and I think this is the most impor­tant mea­sure of the death penal­ty because new sen­tences mean more exe­cu­tions and a larg­er death row – are down by over 60% since 1999. There were 300 death sen­tences a year through­out the 1990s. Last year there were 125 death sen­tences. That may sound like a lot, but it is far less than it had been.

This year, we are pro­ject­ing that the num­ber of sen­tences will remain low, the low­est they have been in 30 years since the death penal­ty was rein­stat­ed in the United States. Not all of the change is pos­i­tive and in one direc­tion. But the change is sig­nif­i­cant, and I think it is attrib­ut­able to two caus­es: first, and Mr. Greco of the ABA point­ed this out ear­li­er, as the num­ber of exe­cu­tions rose, lawyers from bar asso­ci­a­tions and law firms, jour­nal­ism stu­dents, and con­cerned indi­vid­u­als from around the coun­try start­ed look­ing at these cas­es more close­ly, espe­cial­ly as exe­cu­tions neared. What they found in case after case was that the defen­dant had been wrong­ly con­vict­ed.

Thirteen peo­ple in Illinois, alone, were wrong­ly con­vict­ed and sen­tenced to death, many of them hav­ing come close to exe­cu­tion. One of them, Anthony Porter, had his case inves­ti­gat­ed by jour­nal­ism stu­dents. They hap­pened to review this case because their class met at a time when he had received a stay of exe­cu­tion based on his men­tal capac­i­ty, not because of his pos­si­ble inno­cence. This was not an instance of the crim­i­nal jus­tice sys­tem work­ing well. This case illus­trat­ed how inde­pen­dent influ­ences from out­side the jus­tice sys­tem could expose the prob­lems in the death penal­ty. The stu­dents dis­cov­ered that Porter could not have com­mit­ted the crime that put him on death row. They found the actu­al per­pe­tra­tor who con­fessed to the crime. Porter was freed, and the pub­lic was shocked at how a near tragedy was avert­ed.

In the late 1990s, the num­ber of exon­er­a­tions from death row con­tin­ued to grow, and the issue of inno­cence received con­fir­ma­tion from anoth­er out­side source. The advent of DNA test­ing, which emerged in the 1990s and became more sophis­ti­cat­ed and preva­lent in the late 1990s, con­firmed that peo­ple, whom the courts and juries ensured us were guilty and deserv­ing of death, were actu­al­ly inno­cent.

DNA test­ing cast a new light on our crim­i­nal jus­tice sys­tem. Even though the major­i­ty of the cas­es where inmates were freed from death row did not involve DNA test­ing, this sci­en­tif­ic affir­ma­tion exposed deep­er prob­lems through­out the sys­tem. If DNA test­ing proved that in some cas­es the wrong per­son had been con­vict­ed and sen­tenced to death, then one had to be con­cerned about the many oth­er cas­es in which no DNA evi­dence was avail­able.

The sec­ond impor­tant con­tri­bu­tion to the decline in the use of the death penal­ty that emerged in the 1990s was the intro­duc­tion of the sen­tence of life with­out the pos­si­bil­i­ty of parole. That has been a grad­ual process in the United States, and may not seem like progress from the per­spec­tive of those con­cerned about the high rate of incar­cer­a­tion in the U.S. But for the death penal­ty, it rep­re­sents a crit­i­cal alter­na­tive.

Jurors in death penal­ty cas­es are faced with the dif­fi­cult task of pos­si­bly sen­tenc­ing some­one death, know­ing that in 5 or 10 years new evi­dence might reveal that the wrong per­son was con­vict­ed. In the ear­li­er years of the death penal­ty, the alter­na­tive to a death sen­tence was a life sen­tence in which the defen­dant might some­day be released. A life-with­out-parole sen­tence has giv­en jurors a mid­dle ground between death and the pos­si­bil­i­ty of release.

The num­ber of death sen­tences has declined dra­mat­i­cal­ly and the num­ber of peo­ple serv­ing life-with­out-parole sen­tences has increased. These two devel­op­ments, inno­cence and life-with­out-parole, are chang­ing the face of the death penal­ty in the United States.

As I men­tioned ear­li­er, how­ev­er, all the change is not in one direc­tion. The fed­er­al death penal­ty is expand­ing and there are efforts to broad­en it even fur­ther. The fed­er­al death penal­ty is being aggres­sive­ly pur­sued in the 12 states that do not have cap­i­tal pun­ish­ment. The num­ber of peo­ple on the fed­er­al death row has gone up while the num­ber of peo­ple on the states’ death rows has declined.

Another dis­turb­ing devel­op­ment is hap­pen­ing in California. There are 640 peo­ple on death row in California. There have been 11 exe­cu­tions over the past 30 years. That is a sys­tem that is on the verge of spilling over its damn. In our sys­tem, you can­not stop exe­cu­tions indef­i­nite­ly. Appeals do run out – there are no ​“end­less appeals.” Three exe­cu­tions are sched­uled in California over the next few weeks. There could be many more, and that could reverse some of the trends I have been describ­ing.

Finally, there are still many law­mak­ers who believe strong­ly in the death penal­ty and are still try­ing to accel­er­ate exe­cu­tions. There is pro­posed leg­is­la­tion enti­tled the Streamlined Procedures Act, which would dras­ti­cal­ly cur­tail death penal­ty appeals. It cur­rent­ly takes an aver­age of 10 years from sen­tenc­ing to exe­cu­tion in the United States. Some leg­is­la­tors want to short­en this to 5 years. Of course, the dan­ger with such a sys­tem is that some of the 122 inno­cent peo­ple who had been freed from death row would have been exe­cut­ed before the evi­dence emerged to free them. Those cas­es took an aver­age of 9 years from sen­tenc­ing until when the inmates were freed to devel­op the nec­es­sary evi­dence of inno­cence. If the exe­cu­tions had occurred after 5 years, many of them would be dead.

We will hear from one of these indi­vid­u­als, Kirk Bloodsworth, short­ly. His case was the first case where DNA evi­dence freed a death row inmate in the United States. That case took many years to devel­op. If we cut the appeals process down from 10 years to 5 years, we run the risk of exe­cut­ing the typ­i­cal inno­cent per­son instead of free­ing him.

So there are clear­ly trends that coun­ter­bal­ance the decline in the use of the death penal­ty in the U.S. Nevertheless, I believe that the drop in death sen­tences is the stronger trend because it has occurred not just this year, but con­sis­tent­ly over the past 5 years. Moreover, there are oth­er indi­ca­tions that the death penal­ty may be on the wane: New York recent­ly reject­ed an effort to restore its death penal­ty after it was over­turned in the courts. New York was the last state to adopt the death penal­ty in 1995, and now it has aban­doned cap­i­tal pun­ish­ment. Texas, which leads the coun­try in exe­cu­tions, just this year adopt­ed the sen­tence of life with­out parole. I think we will start to see a decline in death sen­tences in Texas. Illinois has a mora­to­ri­um on exe­cu­tions. New Jersey has a mora­to­ri­um on exe­cu­tions. Many states are con­sid­er­ing reforms of their death penal­ty sys­tem. I think the prospects for the future are pos­i­tive, but there are many com­pet­ing trends. Hopefully, the inter­na­tion­al move­ment away from cap­i­tal pun­ish­ment will but­tress the turn­around on the death penal­ty that has been slow­ly emerg­ing in the United States. Thank you.

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Ronald Tabak from the United States: My ques­tion is for Mr. Dieter. The two speak­ers that spoke after you, one of them claimed that abo­li­tion­ists in the United States are afraid to debate the sub­ject, and the per­son after that, Mr. Hodgkinson, spoke about the dan­ger of los­ing in leg­is­la­tures what you have gained in lit­i­ga­tion. I’d like you to com­ment on those state­ments in light of what hap­pened in New York after the court deci­sion there and what has hap­pened regard­ing the men­tal­ly retard­ed and juve­niles in the United States fol­low­ing enact­ment of leg­is­la­tion in var­i­ous states. Thank you.

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All right. Thank you for that ques­tion. Of course, the United States strong­ly embraces democ­ra­cy and so it is hard to have last­ing change unless the peo­ple endorse it. There may be deci­sions from our Supreme Court and laws from our leg­is­la­tures, but ulti­mate­ly, if the peo­ple are not behind them, such changes are not going to stand, and that is cer­tain­ly true regard­ing the death penal­ty. The death penal­ty was stopped in 1972 by the Supreme Court, but that mora­to­ri­um did not last because most peo­ple want­ed the death penal­ty. So, at least from the per­spec­tive of the United States, I think that what Ron Tabak is hint­ing at is essen­tial.

There has to be debate among the peo­ple if death penal­ty changes are to last. With respect to out­law­ing the death penal­ty for juve­niles and the men­tal­ly retard­ed, there first had to be local leg­isla­tive dis­cus­sion in many states. If the Supreme Court act­ed alone, I doubt that the incre­men­tal steps that we have been mak­ing in lim­it­ing the death penal­ty would be secure. It is not enough sim­ply to have a pro­nounce­ment from a judi­cial body.

Fortunately, I think this local debate about death penal­ty issues is hap­pen­ing. Lawyers are not the only ones involved in these dis­cus­sions; there are activists and church groups. The Catholic Church, for exam­ple, has been very involved in this issue, and oth­er reli­gious groups are echo­ing the same sen­ti­ments. Many are say­ing that the death penal­ty is a cul­ture-of-life issue, and so con­ser­v­a­tive peo­ple are chang­ing their minds on the death penal­ty, too.

Formerly, lib­er­als were against the death penal­ty and con­ser­v­a­tives were for it. That is rapid­ly chang­ing. There is open­ness to deal­ing with the death penal­ty on a bipar­ti­san lev­el. For exam­ple, I think the coun­try as a whole is accept­ing of the Supreme Court’s deci­sion to elim­i­nate the men­tal­ly retard­ed from the death penal­ty. That deci­sion is not going to be tak­en back. I think they are accept­ing of the deci­sion to exempt juve­niles from the death penal­ty, because of the prepa­ra­tion of groups that paved the way. One exam­ple of tak­ing an issue beyond the­o­ry and the law is the work of the pho­tog­ra­ph­er Toshi Kazama, who is here today and who has per­son­al­ized the issue of juve­niles through his pic­tures.

I hope that address­es some of the points you raised.

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I would like to add a brief com­ment about life-with­out-parole sen­tences, which Marc Mauer will be speak­ing more about lat­er. The use of these sen­tences has grown inde­pen­dent of the death penal­ty. This sen­tence has emerged from the cor­rec­tion­al sys­tem — it is invoked for repeat offend­ers under what we call our ​“three strikes law.” We have life with­out parole sep­a­rate from the cri­sis with the death penal­ty.

Now that the death penal­ty is on the defen­sive in the U.S., life with­out parole has emerged as the only accept­able alter­na­tive to most of the American pub­lic. I believe that if the death penal­ty were struck down, we would also see a reduc­tion in life-with­out-parole sen­tences. Because life with­out parole would then be the most extreme sen­tence, it would be used for a nar­row­er group of cas­es. Right now, 1% of the peo­ple who com­mit mur­der receive the death penal­ty – a large share of the remain­ing 99% is receiv­ing life-with­out-parole sen­tences. If the death penal­ty was end­ed, I think we would still see some defen­dants, per­haps the ​“worst” offend­ers, receiv­ing life with­out parole. But the major­i­ty would receive life with pos­si­ble con­sid­er­a­tion of parole. That is per­haps an opti­mistic view, but I could see it happening.



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