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VOA-TV Pro and Con: the Death Penalty

NewsLine host David Borgida moderates a pro and con debate on the death penalty. Supporting the death penalty is Professor William Otis, of the George Mason University Law School in Virginia. Against the death penalty is Lisalyn Jacobs of the American Civil Liberties Union.

And now for our Pro and Con segment. It is an opportunity for you to hear the two opposing sides to a contentious issue. And today the topic is the death penalty.

And here to speak in favor of it, Professor William Otis, of the George Mason University Law School. And against it, Lisalyn Jacobs, of the American Civil Liberties Union.

Thanks both of you so much for coming.

This is, as I just mentioned, a contentious issue, but it is one that a lot of people around the United States and beyond are discussing this week.

So, as we begin, I would like to give you both just an opening opportunity, as if this were a formal debate. It will be less so as we go, I hope. So, just give me your very short view of the death penalty.

Please, begin.

Thank you.

The American Civil Liberties Union, as you may know, is an abolitionist organization. It believes the death penalty should be abolished. If you pull the camera back internationally, you will see that the United States is the only Western nation that still has capital punishment on the books.

So, while it holds itself out as a beacon of human rights on the one hand, and challenges countries like China and Sudan and others on their human rights records, frequently you could see that it doesn't literally have its house in order as it does that.

If you look more closely at the system in the United States, you will see, as the commutations that Governor Ryan felt were necessary to do over the weekend display, that what we are looking at is a broken system.

And it's broken across a number of levels. There are racial disparities in terms of who ends up on death row. There are gross geographic disparities.

If you commit the same crimes in Philadelphia and in Pittsburgh, you are much more likely to end up on death row in Pittsburgh than if you commit the same crime in Philadelphia.

Professor Otis, I'm going to give you a chance to rebut that, and then you two can go at it if you like.

Thank you.

We accept at all other places in our criminal justice system that the punishment should fit the crime. And for some crimes, like for example Timothy McVeigh's crime, slaughtering, blowing to bits, 168 people, after weeks or months of planning it.

That was the Oklahoma City Federal Building.

That was the Oklahoma City bombing.

For David Westerfield, who was just sentenced in California, for taking a 7-year-old girl out of her bed, knocking her teeth out, doing whatever he did to her and then killing her, for crimes like that, I think most of our people know that the death penalty is the only punishment that really fits.

And beyond that, to entirely set aside the death penalty, even for killers like that, is dangerous, because we know that some of them will do it again. We know, for example, that 9 percent of the people on death row already had one homicide to their credit -- if you want to put it that way -- when they arrived there.

Now, we have 167 people in Illinois who have gotten a blanket commutation. What do you think the chances are that not a single one of them will kill again? We know, as a statistical matter, that there is going to be innocent life lost, not because we have the death penalty but because in Illinois we've abandoned it.

Ms. Jacobs, do you want to take issue with anything he said?

Sure, I would love to do that. I would like to jump in particularly on the terminology, "blanket commutation."

What Governor Ryan did on Friday was to pardon four individuals, whom he all felt to be victims of police brutality. There was a huge scandal there.

The police chief had to step down. In that instance where those particular four inmates had told consistent stories, although neither knew each other, about their confessions being tortured from them, he pardoned them.

As to the remaining, I think, 163, he commuted their sentences to life in prison. So, there is no concern there that there will be vast hordes of people roaming the streets and committing crimes again.

But I think what I was sort of in the midst of saying in my opening was that the system is broken on a number of levels. For any number of those people, they did not have effective counsel.

If you look at the State of Alabama, there is no right to, and no financial assistance for, appellate counsel for somebody who is in a death penalty case. And as you, I think, as a former litigator and appellate litigator, know, those are cases and issues that are extraordinarily complicated.

To say that you are going to subject somebody to the ultimate criminal sanction, but then to deny them the due process of law and the protections that are constitutionally supposed to attach in order to ensure that all their rights have been protected before you walk them down the hall to the death chamber, is to make a mockery of our system.

Jump in, Professor Otis.

No one, no fair-minded person, thinks that we should go forward with an execution where the defendant has not been given competent counsel, where there is any hint of racial influence in the trial or the prosecution, or certainly where there is even a residual realistic doubt of guilt.

And in some cases, cases like that, then individual commutations are merited. But as the incoming liberal Democratic Governor of Illinois has said, this commutation by Governor Ryan was a big mistake; that there is no one-size-fits-all solution to this question.

We know in some cases, for example, the Timothy McVeigh case, there is no hint of racial influence. There is no realistic doubt about his guilt.

He was given $3 million for his defense, and had one of the best, if not the best, defense lawyers in the State. For a case like that, to tell our juries, juries that don't consist of monsters or dummies, but juries that consist of ordinary, fair-minded people like you and me, to tell those juries that they can never impose the death penalty, that's wrong.

Let me jump in, Professor Otis, and put this into some perspective. There were 71 executions, I believe, in the United States last year.

And the American public, 70 percent of them, believe that the death penalty is appropriate. And I want to go out on this question, with a 30-second answer from both of you. Professor Otis, is there a deterrent effect with the death penalty?

That is a hotly debated subject.

That's why I asked.

Let me say a couple of things about that.


There was a recent study by a professor at Emory University in Atlanta that found, using statistical analysis that had not previously been used in these studies, that for every execution, 18 murders are deterred.

And I can tell you this for sure -- no serious person who favors abolition of the death penalty can tell us that not a single murderer has been deterred by execution. We accept everywhere else in the criminal justice system that punishment deters crime, and we believe that it's true in the death penalty system as well.

Ms. Jacobs, jump in. You have 30 seconds, Ms. Jacobs.

Sure, I'll do that.

There are other studies which show that if you compare the 38 States that have the death penalty on the books to the 12 that don't, that the 12 that don't actually have lower murder rates. So, there is definitely an issue there.

I personally don't think that the death penalty is a deterrent because so many of the crimes for which death attaches are crimes of passion.

And somebody who is going to commit a crime of passion is somebody who is not thinking particularly rationally. Deterrence attaches, I think, only when somebody is thinking rationally.

But I wanted to make a quick distinction between a Federal and a State death penalty, which is where Timothy McVeigh was.

We're not going to have time for that part of it; I'm sorry. You get the last word. Lisalyn Jacobs, of the American Civil Liberties Union here in Washington, and Professor William Otis, of George Mason University. Thank you both for joining us. We appreciate it.