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Society And The Death Penalty


The death penalty is the ultimate punishment a society can impose on its citizens. We'll explore the pros and cons for having the death penalty in a democracy.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. San Diego will be listening and watching tomorrow when John Gardner is sentenced for the murders of North County teenagers Amber Dubois and Chelsea King. After Gardner confessed and pleaded guilty to the murders, the San Diego County District Attorney's office said it would not be seeking the death penalty against him. Yesterday on These Days we began an exploration of the history and application of the death penalty in California. We focused on the legal decisions that have shaped capital punishment in our state, and how death penalty cases are handled. This morning, our focus is on the emotional and cultural aspects of the death penalty. A majority of people in California say they support capitol punishment, even though inmates on California's death row are more likely to die of old age than to be executed. What does a death penalty do for and to our society? I’d like to welcome my guests. Virginia Lewis is professor of political science at the University of San Diego. Good morning, Virginia.

VIRGINIA LEWIS (Political Science Professor, University of San Diego): Good morning, Maureen. It’s nice to be here.

CAVANAUGH: Paul Kaplan is professor of criminal justice at San Diego State University. Good morning, Paul.

PAUL KAPLAN (Criminal Justice Professor, San Diego State University): Good morning, Maureen. Thank you for having me.

CAVANAUGH: Kent Scheidegger is legal director of the Criminal Justice Legal Foundation. Good morning, Kent.

KENT SCHEIDEGGER (Legal Director, Criminal Justice Legal Foundation): Good morning.

CAVANAUGH: And we invite our listeners to join the conversation. Does having a death penalty show our society’s respect for victims? Or is it an inherently cruel and unusual punishment? Give us a call with your questions and your comments about the death penalty in California. Our number is 1-888-895-5727, that’s 1-888-895-KPBS. Paul, I’d like to begin, if I may, by talking about the purpose of the death penalty in society today. What role does capital punishment play?

KAPLAN: That’s a great question, Maureen, and it’s complicated. It’s a little bit hard to answer succinctly. But ordinarily the – when people talk about the death penalty and its purported benefits, we talk about a few different categories such as things like deterrents and incapacitation and other moral benefits such as retribution and even rehabilitation. In fact, rehabilitation of the offender was historically a reason for using capital punishment.

CAVANAUGH: How does that work?

KAPLAN: It’s, in a sense, rehabilitating the soul of the person…

CAVANAUGH: I see. I see.

KAPLAN: …by convincing them to take responsibility for their actions. So those are the sort of traditional what are thought of as the benefits and usually when we talk about the death penalty, we juxtapose those against the potential costs of the death penalty. Obviously, things like the monetary expense, fairness, in other words, we know empirically that the death penalty is not administered in a fair way, it’s disproportionately used against marginalized people, poor people and people of color. And there’s also the question of innocence, the potential for executing an innocent person. So normally in discussions of capital punishment is kind of a cost benefit analysis looking at these two categories of cost and benefit. And what I would propose is a, I think, a better way to talk about the death penalty is to think about what it does to or for our society that is a little bit of a bigger question or bigger issue than those costs and benefits, which is this. I would argue that the death penalty essentially is a seemingly simple solution to a very complicated problem. So executing a person seems like a kind of a tidy, easy solution. It doesn’t turn out that way. It’s very – takes a long time but the idea of it that it represents is a simple solution to what is, in fact, a complex array of social problems because whenever somebody kills another person, empirically it’s true that there’s a complicated story there, a social history, and I think that the death penalty allows us to kind of not worry about that or not look at or not see the social forces that are implicated in murder.

CAVANAUGH: I want to talk more about that complexity as our conversation grows. I want to hone in on some of the aspects of the death penalty, some of the reasons for it that are most often given. And, Virginia, we hear a lot about deterrents being used as a reason for the death penalty. It would stop people if they knew for certain that they would face an execution if they went out and they killed someone or did some other terrible crime. That, perhaps, would stop people from not only embarking on that particular crime but perhaps even starting a life of crime. What do we know about that?

LEWIS: Well, deterrents is a tricky issue. It’s very hard to know. You know, you can’t identify any factors that empirically can be verified. You can’t say, well, such and such a person didn’t do something because there was a death penalty. So you can’t know that actually. One way that we can—and I’m sure that Paul, my colleague in sociology, can help us out on this one—but one of the things that people argue is that in states where there is a death penalty, you seem to have more crimes that require the death penalty, more criminals. And so the deterrent issue is not usually considered to be a great idea. The deterrents issue is really remarkable when we think of something Paul just said, which is that it’s supposed to rehabilitate the person who committed the crime. And it’s a very kind of overreaching, I think, of us in society when we think that what we really want to do is get a confession and repentance. We’re kind of playing priest and rabbi and it’s a very bizarre thing. The idea is that the person will repent only when they’re facing death and that’s kind of the inner dynamic of that argument.

CAVANAUGH: A very – very theological argument.

LEWIS: Yes, it’s very theological.

CAVANAUGH: And not really part of our modern consciousness when it comes to criminal justice. You wanted to talk a little bit about deterrents, Paul.

KAPLAN: Yeah, what I would say is that, in the first place, deterrents requires that the potential deteree be rational, right, so that you can’t be deterred if you’re irrational, if you’re not capable of weighing costs and benefits or making a rational decision to undertake a behavior. You can’t be deterred because that deterrence relies on a rational actor. And many, many people who end up killing somebody are not rational. They may have mental illness, they may have a low IQ, they may be under delusions, all kinds of different factors that inhibit their rational ability to weigh. Moreover, the evidence, the research on deterrents, is inconclusive so, yes, you can compare different jurisdictions, you can look at a state that has the death penalty and one that doesn’t have the death penalty, you can use statistical methods to control for other variables and then determine whether the homicide rate goes up or down depending on the presence of the death penalty. And my understanding of this—and I haven’t reviewed this literature recently—but my understanding is that the evidence is very conclusive as to whether the presence of a death penalty in a jurisdiction lowers homicide rates.

CAVANAUGH: I want to get Kent in our conversation. As I said, Kent, you a legal director of the Criminal Justice Legal Foundation and your organization, if I understand it correctly, advocates for swift and decisive punishment.


CAVANAUGH: One of the key arguments for the death penalty in our society here in California is that it brings not only justice for the victims’ families but it values – shows the value that we collectively have for the life of the victim. Do you support that? Can you tell us a little bit more about that?

SCHEIDEGGER: Well, I do agree with that in general. I mean, it’s an amorphous thing to really – to get a handle on. But I do think that it does kind of devalue the life of the victim to let murders off with less than they deserve for the crime. Now, there – you’ve been through a number of points…


SCHEIDEGGER: …that I would like to address…

CAVANAUGH: Please do.

SCHEIDEGGER: …from the previous guests so… On the issue of whether the death penalty is disproportionately imposed on persons of color, in fact, the studies that have been done on whether there is a race of defendant bias have been nearly unanimous that there is no such bias, at least to the extent that studies are capable of determining, that the – a black defendant is no more likely and perhaps even slightly less likely to be sentenced to death for a comparable crime than a white defendant. On the deterrents issue, there are studies going both ways. You could say inconclusive. I think overall the evidence tilts in favor of having a deterrent effect where the death penalty is actually enforced. Simply having it on the books may not have a deterrent effect although there was one very interesting study where states that added a special circumstance that child murder as such was a death penalty eligible offense, there was a reduction in the murders of children. So it’s possibly that even simply having it on the books is a deterrent effect.



CAVANAUGH: Yes, go ahead, Kent.

SCHEIDEGGER: Okay. As far as redemption and confession, we don’t usually hear that stated as a reason for the death penalty but there are, indeed, a fair number of cases where right before the execution the murderer does take responsibility for what he did and apologize to the victim’s family. I suppose that’s a kind of a redemption and something that you wouldn’t have with life in prison, for what it’s worth. It isn’t usually one of our arguments but it does exist.

CAVANAUGH: We are taking your calls about the death penalty in our society, the death penalty in California. 1-888-895-5727, and we’re asking where you stand on the issue. And let’s take a call right now. Andrew’s calling us from Ocean Beach. And good morning, Andrew. Welcome to These Days.

ANDREW (Caller, Ocean Beach): Hi. Great show as usual. Got you on speed dial.

CAVANAUGH: Thank you.

ANDREW: I just wanted to say that, you know, I’m a man of color yet I’ve been on both sides of the court, and that I’m still a firm believer that, you know, some people – death penalty, we do it to animals, we need to do it to – Some humans act like a lot less than animals, like this guy that we’re going to – the Gardner guy. He’s – I’m sorry, I feel for the family. I’m a father also and that’s – No sorry can really do that. We kind of – I know an eye for an eye, leave every damn blind thing but we can’t walk around with a society of one-eyed people.

CAVANAUGH: Okay, Andrew, thank you. Thank you so much for your call. You’re breaking up just a little bit. I just want to make the point very clear that John Gardner, the confessed murderer of Amber Dubois and Chelsea King is not facing the death penalty. And that actually sort of provoked this conversation in that also referencing what Kent said, we have a death penalty on the books but California doesn’t seem to use it very much. In fact, right now, Paul, there’s actually a moratorium on the death penalty. Tell us why.

KAPLAN: It has to do with lethal injection. So responding to your – to the question about the moratorium currently in California, it’s just a legal blockage. It’s not a political moratorium. There was no voting, there was no legislation. It’s basically a court still adjudicating whether or not lethal injection passes the 8th Amendment, the cruel and unusual punishment rule. But let me – I’d like to just respond to the race issue briefly.

CAVANAUGH: Sure, sure.

KAPLAN: Going back to that, if I may. It’s true – It may be true that the likelihood of the – the likelihood of getting a death sentence is fair in some sense for the offender, however all the classic research on victims shows that if the victim of the crime is white, the higher the likelihood of a more harsh punishment including the death penalty. So that means that maybe it’s true that we don’t treat offenders differently but we do treat victims differently, which says something about a form of a race effect in the justice system. And the other point about disproportionality is just that if you just look at the ratios of the percentage of, say, African-Americans on death row in California to African-Americans in the population, it’s higher. That’s just an empirical disproportionate number.

SCHEIDEGGER: Could I – could I quickly…

CAVANAUGH: Yes, please, Kent.

SCHEIDEGGER: It is not true that all of the research indicates the race of victim bias. There is – there are a number of studies going the other way, including one by Rand Corporation where researchers from different perspectives all looked at the same data and all came to the same conclusion, that there was no such bias. As far as proportion of death row to proportion of the population, that’s what I like to call the fallacy of the irrelevant denominator. Death row isn’t for the general population. Death row is for murderers. And if you compare the racial composition of death row to the racial composition of murderers, lo and behold, it’s about the same.

CAVANAUGH: Well, okay, Kent, thank you for the – thank you for responding. I’m looking at the time. We have to take a short break and when we return, we will continue talking about the death penalty in California. Does it show society’s respect for victims? Do you support the death penalty? Or do you feel that it’s an inherently outdated form of punishment? Give us a call with your questions and your comments. Our number is 1-888-895-5727. These Days will return in just a few moments here on KPBS.

CAVANAUGH: I'm Maureen Cavanaugh. You're listening to These Days on KPBS. My guest are Virginia Lewis, professor of political science at University of San Diego, Paul Kaplan, professor of criminal justice at San Diego State University, and Kent Scheidegger is legal director of the Criminal Justice Legal Foundation. We are talking about the death penalty in California, whether it helps or hurts our society, whether it’s working, and what do we even mean when we say is it working or not. 1-888-895-5727 is the number to call and join the conversation or if you’d like to comment online, it’s Virginia, we just heard that there is this de facto moratorium on the death penalty in place here in California and the reasons for that is that one of the, what they call the cocktail, of drugs given in the lethal injection to – for executions may, indeed, cause a great deal of pain. Now to some people, the idea of whether or not you cause momentary pain to someone that you’re killing is not – is a crazy kind of a concept. So what do we mean when we talk about the ethics of the death penalty?

LEWIS: Well, Maureen, as the Union-Tribune pointed out last week, we have 690 individuals on death row. That place is a first in the nation. So there is some kind of moral rectitude, I guess I would say, a kind of holding back that seems to be in the air and it’s important to put that in the constant – context of the rest of the world. Liberal democracies do not execute criminals except for the United States. So when you take a look, comparatively, at other societies, we’re in bed with a lot of very nasty regimes in that we do take our own citizens’ lives. Now, you know, you’re absolutely right to say, well, what’s too much pain. You know, this person certainly merits death. I don’t think anybody would argue that the criminal who’s committed a murder, like a John Gardner, for example, since that’s the case we’re talking about, merits death. Well, most of us would say, sure. The question is, though, what does it do to us. And I think Paul raised that question at the start of the program. What happens when we become executioners? And I think that we’re much more concerned, certainly, in liberal democratic theory with that question than the simple cost of it, of the effectiveness of it. You know, there are a couple of reasons that Kent mentioned. Justice was a word that he used, and he talked about the justice for victims. And I want to be a little provocative here and say that of course there’s a sense in which everybody’s a victim when a crime is committed but the victim in the case of a murder is different from the victim in the case of all other kinds of crime. The victim is actually dead, and so we really – you know, if we want to talk about the victim’s justice, it’s really the justice for the relatives, the family, the friends. It’s not for the victim. And I think we are very unclear in the way we use language, and then we can see maybe that what we’re really talking about is not justice but we’re talking about revenge or we’re talking about deterrents but we’re not talking about justice. And that’s one of the things I’d like to try to open up a little, is that, you know, justice is not just, is not simply going out and punishing people. Justice is something that really describes the way a society is organized and the way we live our lives with each other in community.

CAVANAUGH: I’ve invited our listeners to join our conversation. I have to get in some phone calls. They’ve been waiting patiently on the line. Our number is 1-888-895-5727 or you can go online, Susan is calling us from Encinitas. Good morning, Susan. Welcome to These Days.

SUSAN (Caller, Encinitas): Good morning. I kind of want to feed off of what your last speaker just said it’s about a bigger picture, stepping back and the notion of deterrents in a bigger way. The notion that you would deter the taking of life by taking a life is really absurd. And if you look at, you know, the spectacles that happen around the executions themselves, it’s – you’re saying kill – We’re killing so that you won’t kill. It’s bizarre and I think it’s sending the wrong message to kid – people. And I’ve often thought, you know, there’s a guy going into a – running into a liquor store with a handgun and he’s getting ready to pull the trigger. What’s going to go through his head? Is the notion that killing this victim, this innocent person, going to solve my problems, if society’s demonstrating that killing people solves problems, you’re feeding into that, you know…


SUSAN: …instead of the sacredness of life.

CAVANAUGH: Thank you. Thank you, Susan. Yes, Kent, you’ve seen what Susan was saying, you’ve actually seen it on bumper stickers. We kill people to tell people…


CAVANAUGH: …not to kill people.


CAVANAUGH: What is your answer to that? Do you have one?

SCHEIDEGGER: Well, in fact, every – Oh, sure.

CAVANAUGH: Oh. No, I mean, I’m not painting you as a…


CAVANAUGH: …just a flat-out supporter of the death penalty because what I understand from your group is that if we have a death penalty, what you’re saying is we should use it. Is that…

SCHEIDEGGER: We should use it in appropriate cases.


SCHEIDEGGER: And on the issue of punishment, if you look at punishments generally, everything we do to punish people would, itself, be a crime if done by a private person. If Mr. Garrido is convicted of kidnapping Jaycee Lee Dugard and holding her prisoner for a number of years, we’re going to punish him by holding him prisoner for a number of years, and nobody has a problem with that. So to say that we should not do to the criminal what the criminal did to the victim, nobody really believes that as a universal rule. Sometimes we do, sometimes we don’t. We don’t torture torturers but we do imprison kidnappers. So that doesn’t really answer the question one way or the other. I don’t think it brutalizes society, to use a term that’s often heard, to carry out a well-deserved punishment for somebody who’s committed a terrible crime. And there is certainly a world of difference between that kind of punishment with due process of law and the crime itself. Now your caller also mentioned something that goes back to something said earlier regarding, excuse me…


SCHEIDEGGER: …got a frog in my throat.

CAVANAUGH: Okay, well, let’s take another call.


CAVANAUGH: And – Let’s take another call. Let you cough awhile, and we’ll come back to you, Kent. Louann is calling us from San Diego. Hi, Louann. Welcome to These Days.

LOUANN (Caller, San Diego): Thank you. I appreciate you taking my call. I want to address the last caller as well as the speaker before because I concur a hundred-thousand percent. I think taking the life of someone shows a general disrespect for life in general and perhaps a philosophical, theological or perhaps a consciousness level of how we view life. And to me, it also seems like it’s the old eye for an eye because what you’re doing is just in a more sophisticated or intellectual form, doing exactly the same thing, taking an eye for an eye, a tooth for a tooth, which has nothing to do with providing safety for people who kidnap or etcetera. To me, they’re two very separate issues so…

KAPLAN: Can I jump in, Maureen?

CAVANAUGH: Yes, I do want – Yes, thank you, Louann. Thank you for the call.

KAPLAN: Thank you. Yeah, what I was going to say is that this – the question of the death penalty having a retributive value, because that’s what we’re talking about now, is that aside from the utilitarian benefits of deterrents and incapacitation, when I say utilitarian, I mean you use those policies to have a general benefit for the society that you can measure. You can measure the deterrent effect, you can measure the incapacitory effect, you know, are there – do incarcerated murderers commit more murders? You can – Those are utilitarian benefits that we can measure. And I think it’s an interesting question as to whether the punishment value of something like the death penalty can be measured and it’s kind of a philosophical question. You might try to figure out a way to measure it by interviewing or undertaking an ethnography of murder victims’ family or something and really trying to find out, did this punishment for this person that killed your family member make your life better? But as far as I know, there hasn’t been much research on that, and I’m pointing it out because I think there’s an important distinction between the measurable utilitarian potential benefits and the symbolic, very difficult to measure retributive benefits.

CAVANAUGH: Another phone call. Another phone call. Richard’s calling us from Encinitas. Good morning, Richard. Welcome to These Days.

RICHARD (Caller, Encinitas): Good morning. How are you?

CAVANAUGH: Yes, good.

RICHARD: Thank you for taking my call. Just a couple of quick comments. First of all, there’s a certain circularity to a lot of these opposition arguments. I mean, for example, opponents of the death penalty say it takes too long and it’s too expensive but they’re the people whose legal challenges have caused those delays and expense in the first place. The second comment is that I think all this discussion about deterrents is beside the point. At the end of the day, it’s about justice. And I’ll tell you one thing, the recidivism rate for convicted murderers who are executed is very, very low. I want to be sure they’re never going to kill again. And, finally, your last – your lady professor who made some comments…

CAVANAUGH: That would be Virginia.

RICHARD: Yeah, I would say that her comments…

KAPLAN: Dr. Lewis.

RICHARD: …were not just provocative, I would say that they were offensive. And everything she said was 100% wrong. We are not a liberal democracy, we’re a conservative democracy.

LEWIS: Well, I’m fascinated to hear your description of that. Liberal, you know, when we talk about democracies, we’re not – we don’t use the language mainly of Republicans and Democrats, and liberals being Democrats. What I mean is a liberty oriented society, so there are a lot of conservatives who would say, yes, this is a liberal society because we want liberty, and as a matter of fact, we think the Democrats are taking away our liberty, our individual liberty.

CAVANAUGH: It’s a different meaning of the words.

KAPLAN: Yeah, capital ‘L’ liberty.


LEWIS: So that’s what people usually mean by it. But I just want to say, you know, the issue is how are we deterring someone from performing this act again? Well, you know, you can deter a person from killing again in two different ways. You could kill them, of course, and then they can’t do anything. But you can also make it impossible for them to commit the crime again by lifetime imprisonment. And so deterrents, you know, addresses two different issues. It addresses the person who’s actually the murderer and then it addresses the public at large.


LEWIS: So if we’re talking about just deterring the murderer, we can certainly do that by locking somebody up.

CAVANAUGH: Jeff, are you on the line?

RICHARD: No, this is…

CAVANAUGH: Or is that Kent?

SCHEIDEGGER: Well, I’m – I can address that if Jeff’s not on the line.


SCHEIDEGGER: Okay, it is true in terms of incapacitation locking the person up for life is largely incapacitative but even then it’s not 100%. There’s a fellow up for execution very soon in Arizona who escaped from prison after being sentenced to life and then killed again. We’ve also had cases in California of people who arrange murders on the outside from within prison. So the incapacitation of life in prison, although large, is not 100%. The other point I wanted to return to on the deterrents issue is the question of rationality. I think that many people in academia give criminals credit for too little rationality. That is, I think criminals are, by and large, much more rational than they are supposed to be in some of these arguments. Now there are some people who are beyond rationality because they are schizophrenic or something like that but I think for the most part nearly all humans are rational actors, they have the power of free choice, and punishment is, indeed, one of the things that they consider when they decide whether to commit a crime.

CAVANAUGH: Let me pose a question and start with you, Paul. You know, from time to time both sides, supporters and opponents, I don’t know how actually honest they are in this suggestion, but they suggest that executions should be made more public, they should even perhaps be televised. And the supporters want that done so it would be the maximum deterrent. Opponents say if people saw these things, they would stop them. And I’m wondering, Paul, what you think about that?

KAPLAN: Well, my academic mentor’s a scholar by the name of Austin Sarat, who wrote a book called “When the State Kills,” and he, as an abolitionist, meaning he’s opposed to the death penalty, argues that we should have public executions and I agree. I think that if you’re going to – the sanitization and invisibility are the opaque nature of the way we punish people and it’s not just the death penalty. The prison system with, you know, over 100,000 people in prison in this state is kind of under the rug and invisible but that’s besides the point. I think that, you know, if we’re – if you’re going to use the death penalty for symbolic and for deterrent reasons then why not make it public, televise it, and, you know, let the cards fall. It’s an interesting question.

CAVANAUGH: Let me get…


CAVANAUGH: …Kent’s response. Kent, what do you think?

SCHEIDEGGER: Yeah, I very much doubt that televising executions as they exist today would have the effect that was proposed. I mean, back in the days of the gas chamber, it might have. It would’ve revulsed people but I doubt that would happen today.

KAPLAN: It’s – Well, it’s an open question as to whether witnessing a lethal injection would have that effect. Sorry, Dr. Lewis, for interrupting you and – But reading the lethal injection protocol, which I’ve read, and myself knowing something about lethal injection because I experienced surgery and woke up after surgery alert and awake because of a chemical imbalance in my body. I was completely alert but totally paralyzed, and this is one of the concerns about the lethal injection procedure is that this could happen, is that the person could be paralyzed and then executed and experience the pain of death. And that didn’t happen to me, obviously, nothing like that, but I did experience alert being under sedation and completely immobile but was alert. And I don’t know what people would think if they saw somebody lethally injected. It’s an open question as to whether it would have the same effect as watching them shot or hung or whatever. I don’t know that I would agree that it would have no effect.



SCHEIDEGGER: …Ohio has developed another protocol that does use only a sedative and doesn’t have the danger…


SCHEIDEGGER: …that people are talking about.


SCHEIDEGGER: I think we’ll probably be going that way in the next couple of years.

CAVANAUGH: That is working its way through the California State Senate, to basically just use one drug and what that would be basically an overdose of an anesthetic. Virginia, you wanted to join in.

LEWIS: Yes, Maureen, I’d like to say that I think that this whole issue about the suffering of the perpetrator, the criminal, when he’s executed or she might be executed is really a red herring. I don’t think that we should even really be concerned because I would have to agree with my colleague Kent that, you know, who really cares? These guys…

CAVANAUGH: But that’s why…

LEWIS: …deserve it. But I…

CAVANAUGH: But that’s why the courts stopped it.

LEWIS: Yes, I know. But I think that’s completely a bad reason for doing so. I think that the reason to have executions be public, and I would agree with Paul and Kent on this, I guess, is that it makes us more responsible for our acts. And when we see that a person has been executed, we participated, participate in that execution. And the reason that I think that is important is because we have many wrong executions, and I’d like to take it away from this kind of mechanical thing about how you kill people to the old fallibility principle. Human beings are fallible, and that’s one of the best arguments against the death penalty. We have had the Innocence Project in Chicago operating for a very long time now and we discover that with new DNA techniques, many people who have been on death row are, in fact, completely innocent. And so I think that the real argument against the death penalty is that we might, in fact, execute an innocent person and in so doing we might make ourselves worse, really, of a criminal because we’ve done it under the cover of law. And that’s a – that’s something you can never – You can never give somebody their life back once you’ve taken it.

KAPLAN: If I may anticipate Kent’s comment, and I may be wrong, there is no – there hasn’t been a proven wrongful execution in the modern era, I don’t believe. There’s research on this, and there have been a number of exonerations, as Dr. Lewis says, people walking off death row after being on for a long time although to my understanding is that there not has yet been a proven wrongful execution. But the question of the possibility of it is very important to think about.

CAVANAUGH: I think there’s…


CAVANAUGH: …one case in Texas that’s…


CAVANAUGH: …pretty darn…

KAPLAN: …an arson case. Yeah.

CAVANAUGH: …yeah, close to being proven. Kent…


CAVANAUGH: …I wonder what your take is on this.

SCHEIDEGGER: Yeah, the – First of all, the estimates that have been put forward as to the number of people actually innocent and sentenced to death are wildly exaggerated. But it is correct there are no proven cases of an actual wrongful execution. But I think…

CAVANAUGH: But even with those…

KAPLAN: If you do…

SCHEIDEGGER: Well, excuse me, you know, I think you’ve had a lot of time...


SCHEIDEGGER: …and things by now.

CAVANAUGH: Well, just a – Kent, I just want to say but even if two people who were on death row…


CAVANAUGH: …going to be executed for a crime and were found to be innocent, would that change your idea of, well, maybe we better take another look at this?

SCHEIDEGGER: No, I would say that what that tells me is we need to focus the review process more specifically on questions of innocence and spend less time litigating issues that have nothing whatever to do with actual guilt or innocence. The present appeal process spends huge amounts of time and huge amounts of money litigating issues that have nothing to do with whether the person actually did it or not, and that’s where we need to focus our reform efforts. We need to be reducing the number of reviews of that penalty phase of the trial. I think one good review of the penalty phase is sufficient. And any further reviews should be reserved and focused upon those very few cases—and they are very few—that even have a genuine question as to whether we have the right guy.


SCHEIDEGGER: That should be the foc…

CAVANAUGH: I’m sorry, Kent. I – When I come back, I’m going to let you finish your thought. We have to take a short break. When we do, we will continue our discussion about the death penalty in California and continue to take your calls. You’re listening to These Days on KPBS.

CAVANAUGH: I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. We’re talking about the death penalty in California, taking you calls and speaking with my guests Virginia Lewis, Paul Kaplan and Kent Scheidegger. Our number is 1-888-895-5727. You can go online and post a comment at Or if you’re listening online, you can join our live chat. Let’s – Let me start by taking a call. We have so many people who want to join the conversation. Jeff is calling us from Philadelphia. I – Wow. Hi, Jeff. Good morning.

JEFF (Caller, Philadelphia): Good morning.

CAVANAUGH: Yes, how can we help you?

JEFF: Oh, I would like to address the issue of closure, so-called closure, which is – there’s a mythology out in the general public which is encouraged by prosecutors who would like to have the families of the victim testify in court that they would like to have the death penalty, they need the death penalty, in order to give them closure or some kind of finality to the tragedy that’s befallen them, probably the worst tragedy of their life, the worst trauma of their life. And the fact is that we don’t have figures as to how many victims’ families would prefer to have execution versus life imprisonment without parole but we do know that there is a large number of people, some of whom belong to national organizations who speak out against the death penalty despite the fact that they’ve had, for example, young children murdered.


JEFF: And the reason they oppose the death penalty is varied but I can give you a couple of reasons.

CAVANAUGH: Well, Kent, let’s – Let’s explore that with our guests. I want to thank you very much for staying on the line and thank you for your question. Kent, I want to pose this to you…


CAVANAUGH: …because should it be up to the victims’ families whether or not a death penalty is imposed?

SCHEIDEGGER: I don’t think it should be up to the victims’ families although I do think their input should be considered and I think that is part of the process the prosecutors go through in deciding whether to seek the death penalty. The position of the family does matter but it’s not controlling because murder is a crime against the victim who is now deceased, it is a crime against society, and it is society as a whole that has the retribution interest. On the issue of closure, that’s a term we try not to use anymore because so many people use it to mean so many different things that it’s not really communicating anymore. I have been told by families of victims that they do feel a certain sense of relief when the case is over and they know to a certainty that the person has received his full punishment and won’t get off and will certainly never hurt anyone else again. So…

CAVANAUGH: Paul. Excuse me.


CAVANAUGH: Paul, let me ask you, the victims’ families are – very often come to the forefront in a trial, especially a death penalty trial, about whether or not someone should be executed. I’m wondering what kind of weight should we give to the victims’ families?

KAPLAN: Well, it’s a complicated legal, philosophical question, the extent to which the victim of a crime should be involved in the decision to prosecute and what to charge. I would say that in the way that the death penalty is practiced in this country and in California is that the victim’s family and sometimes the defendant’s family actually has quite a prominent role in the penalty phase of a death penalty trial. So it’s already there. It’s really sort of an empirical question. It’s there. There’s no debating it. It’s already there. The victim’s family has ample opportunity to testify in the penalty phase. So that’s how I would respond to that.

CAVANAUGH: And I’d like to hear you, Virginia.

LEWIS: Yeah, I’d like to take this opportunity to actually commend the family of Chelsea King for agreeing with the prosecutor’s office that John Gardner not be prosecuted to the full extent of the law and – That’s not exactly what I mean. Not be punished to the full extent of the law because I think what they showed is moderation and I think that moderation is the thing that keeps our society functioning, that we don’t go to extremes in our relationships with each other. We have to create community. We have to fight to create community constantly. And, you know, I know, Kent, that you said earlier that, you know, this thing about us becoming brutalized is really kind of a myth but I think that’s something we really do have to attend to. You know, if you take a look, we – nobody’s brought up religion at all. We’ve talked a little bit about ethics but we haven’t talked much about religion. And if you think about it, in the west, our Judaic Christian tradition says that the chief sin, the thing that separates us from the divine, is anger. Excuse me, is pride. And in the east, it’s anger. And if you look at the death penalty, this is the opportunity really for us to exercise both pride and anger. Pride in assuming that we know enough to take somebody else’s life and we’re righteous enough to take somebody else’s life and that we’re blameless enough to take it, and anger that we really are distressed that a person has done this thing and we really, deep down inside, we want to kill that person.

CAVANAUGH: Right, but the religious argument can work both ways, can’t it, Kent? I mean, people here, our callers, have referenced an eye for an eye.

SCHEIDEGGER: Umm-hmm. Actually, the biblical phrase eye for an eye in its full context is really a limitation on punishment, that is that you would not punish a person with more than he did. I don’t usually get into the religious arguments because it’s not my field but I refer people to the writings of Robert Blecker of New York Law School on that issue. I do want to mention, back to the plea bargain, this was a plea bargain to life in prison without possibility of parole and a bargain that effectively cuts off any further appeals. And that is a…

CAVANAUGH: You’re talking about John Gardner.

SCHEIDEGGER: Gardner, right.


SCHEIDEGGER: That is a bargain that would not happen if we did not have the death penalty available in California. If you did not have the death penalty available, nobody would bargain to that because it wouldn’t be rational on their part. They would go ahead and go to trial and followed by appeals and so this finality at the plea bargain stage with life without parole is dependent upon the state having the death penalty available.

CAVANAUGH: Let’s take a call. Chris is calling us from Oceanside. Good morning, Chris. Welcome to These Days.

CHRIS (Caller, Oceanside): Oh, thank you. It’s a great show, great topic today.

CAVANAUGH: Thank you.

CHRIS: And just a couple of things. You know, Kent’s – listening to you and then listening to the rest of the panel and a lot of the callers, it’s very obvious to someone who has worked in depth with law enforcement and the law, who has experience in this area and who’s really speaking from the television shows and the books that they’ve read. And I’d just like to point out that some of us really do recognize that it’s great for a soccer mom in Encinitas to weigh in and use her example of someone innocently being murdered being reflected by us then taking that person out with the death penalty but it’s not based in reality, it’s based on a television mentality of what we understand because the brutality of things just like our war far exceed the brutality of a just death penalty. And just one more thing is, there’s an absolute measurable quality to having an effective death penalty system and that is we actually do save, over time, millions and millions of dollars that it takes to house these guys for life. And every dollar that we use to house these guys for life is a dollar that’s coming away from our social programs, our medical programs and the feeding of homeless children that we really should be focusing on instead of feeding criminals who really are never going to benefit our society ever.

CAVANAUGH: Thank you, Chris. Thank you for your comment. You know, there’s even controversy there because Chris is saying it takes more money to keep criminals in prison and, yes, it’s – Paul, it’s extremely expensive to go through for – to house someone on death row.

KAPLAN: Well, this is a, you know, kind of an abiding, you know, debate about the cost and the – it is more expensive to use the death penalty system the way we have it because of the time it takes to do the appeals. And so it becomes a kind of a, I don’t know, a dialectical argument about whether, if we did a very swift and certain execution maybe we would save money but then, of course, that raises the possibility of executing an innocent person. So I think that’s – I think, frankly, that, you know, the money cost issue is like several of these topics we’ve been discussing, somewhat irrelevant. And I would return to the Gardner case as a way of talking about trying to understand the social causes of violence, that the death penalty forecloses us, collectively, to investigate. And I don’t know anything about that case but many, many murder cases involve a rather complicated story surrounding the offender, and using the death penalty is a way to preclude learning about those social problems that led to violence. That’s my argument.

CAVANAUGH: Right, Kent, I want to – We’re in our final minutes here…


CAVANAUGH: …and I want to be able to get some information from all of my guests. And, you know, one of the things that we haven’t really gotten into was the fact that as Virginia pointed out, the United States of America is one of the few modern, industrialized countries that still has the death penalty and still uses it. And I’m wondering, how do you see that? How do you see all of these other countries around the world saying, you know, we just don’t need this death penalty anymore, it’s, you know, it’s from a bygone time. We’re going to move on, and the United States still not doing that. Why do you think there’s that dichotomy?

SCHEIDEGGER: I think in many countries the establishment of the death penalty has been imposed by above – from above by elitist governments. The United States has an unusually democratic form of government. Because we divide our government up so many ways and have so many elections, our government is more responsive to what the people want than these other countries. Support for the death penalty in England and Canada is almost as high as it is in the United States and yet those countries don’t have it, and I think it’s because our government is more responsive to what the people want. As far as other countries go, another country with both due process of laws and respect for human rights and the death penalty would be, an example, Japan. I don’t have any problem being in the same category as Japan. We’re certainly not in the same category as countries that happen to have the death penalty but have no due process of law. That’s kind of a spurious argument.

CAVANAUGH: Okay, I’d like to get your input on in, though, Paul. Where does this play – Why do we find ourselves lumped with countries that we don’t normally get lumped with when it comes to executions like they think that there could be thousands of political executions going on in China and executions going on in Iran.


CAVANAUGH: Why are we with them?

KAPLAN: …I actually would agree with Kent on this point to a certain extent, that it’s somewhat spurious just because those countries share the death penalty with us to use that as the unifying characteristic; that’s not necessarily the most logical argument. I’d also agree Japan is an interesting example of – because Japan does use the death penalty although very, very, very infrequently. And Japan’s, you know, it’s almost the same logical argument to use Japan as the same because they use the death penalty as us, as comparing us to China because their society is quite different, although their legal system is more similar to us than China or those other countries. The question of abolition in other countries compared to the United States or the question of retention of it here, which is a bugaboo for criminologists and legal scholars, why does the United States retain the death penalty, is predictably complicated and partially due to what Kent said, federalism, that we have all these different jurisdictions. And it’s something that hasn’t been satisfactorily answered. It needs to be investigated more.

CAVANAUGH: Virginia, do you think that there’s a deeper answer to this? Why we still need the death penalty in this country apparently?

LEWIS: Well, many people would argue that it’s our history, our frontier history, that we’re a – you know, we have vigilante justice that sort of settled the west and that we’re still, as a people, we’re married to that idea. But, you know, I think that the previous caller who talked about the war was onto something very important and that is the other time besides in executing someone, the other time that we kill people and we allow that to happen is when we’re fighting. And, you know, any soldier knows that the rules of engagement do say once the person, the enemy, has been captured, you’re not supposed to execute him. So there’s kind of a bias somewhere in our moral compass about an aversion to simply taking the life of another human being.

CAVANAUGH: I want to thank you all for a very lively discussion. Thank you, Kent Scheidegger.


CAVANAUGH: Paul Kaplan.

KAPLAN: Thank you.

CAVANAUGH: And Virginia Lewis, thank you so much.

LEWIS: Thank you.

CAVANAUGH: Many people wanted to get in on the conversation. We couldn’t talk to you all. Please go online, Stay with us for hour two. You’re listening to These Days on KPBS.

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