Capital Punishment in the United States: A Forum on Death-Penalty Issues

BY | Brooke A. Masters | William A. Schabas | James S. Liebman | Randolph N. Stone | Joseph L. Hoffmann

SESSION 1: Holding on to the Death Penalty

Brooke Masters: Hi, I'm Brooke Masters, a criminal-justice reporter for the Washington Post. We're here at Columbia University today for Fathom to discuss the complicated issue of the death penalty and its continuing use in the United States.

This won't be a religious or moral discussion about the appropriateness of the death penalty. Rather, we will consider two more practical issues: why the United States still executes people, while other nations do not; and whether the American judicial system administers the ultimate sanction fairly and accurately. We'll be looking at allegations that capital punishment is biased against the poor and against racial minorities. And we'll also be looking at recent reform efforts that seek to protect against the execution of the innocent.

video launch video Panelists discuss the reasons that the United States still retains the death penalty at a time when many other countries in the world have abandoned capital punishment.
(17:55 min; download 17.8 MB)

With me today are four experts: James Liebman, Columbia University law professor and author of a major study of the death penalty entitled Broken System: Error Rates in Capital Cases, 1973-1995; Randolph N. Stone, who directs the Mandel Legal Aid Clinic at the University of Chicago and has handled a number of death-penalty cases in the Chicago area; William Schabas, director of the Irish Centre for Human Rights and the author of the Cambridge University Press book The Abolition of the Death Penalty in International Law; and Joseph Hoffmann, an Indiana law professor who writes about death-penalty issues and frequently lectures to judges, prosecutors and defense lawyers on how to handle capital cases.

Let's start with you, William Schabas. Why do Americans support the death penalty and continue to use it, while most Europeans have discarded it?

William Schabas: It's a puzzling phenomenon. It's more than Europeans, by the way.


What do you think accounts for the disparity between European and American acceptance of the death penalty?

According to the United Nations, 123 countries, including all countries in the European Union, have abolished the death penalty. The United States has retained the death penalty both on the books and in practice. What might account for the differing viewpoints on the appropriateness of the death penalty in a criminal justice system?

The international abolition of the death penalty has really hit virtually all continents except Asia. I think the latest figure, according to the United Nations, is that 123 countries in the world have actually abolished the death penalty and 71 still retain it. And the United States is in that group. That's dramatically changed, even in 10 years. Ten years ago, the numbers were about 100 in favor, retaining the death penalty, and 80 had abolished it. Abolition of the death penalty is basically a post-Second World War phenomenon, and the curious thing is that the United States is very much part of the trend for about the first two decades. So, by the middle of the 1960s, the end of the 1960s, the death penalty ceases to exist in the United States for all intents and purposes, and public opinion in the United States is about 50 percent, perhaps even a little more, in favor of abolition. And then something in the mid-1970s switches it all.

People attribute it sometimes to public concern. Certainly there was a debate at the time about high crime rates, and that stirred up the population, but I think there were probably some deeper things at work. I think the United States has, perhaps, a frontier spirit, and I think also it's the tradition of racial discrimination in the United States that has contributed so much to the fact that it's a society that still hangs on to it, whereas Europe, much of Africa and virtually all of Latin America have now abandoned the death penalty. Canada has abandoned it.

Brooke Masters: What do you all think? Why does the United States still have the death penalty?

James Liebman: This is a really puzzling question. That's definitely right, and this is the first question all of the Europeans I talk to about the death penalty ask. Why does the United States, a leader in human rights, a leader in its criminal-justice system, still retain the death penalty? How can the United States retain that practice and still talk about human rights and progress and things like that? One thing that's interesting about the death penalty in the United States is that people's views on the death penalty are highly correlated with other political views they have. It turns out that if you want to ask people one question that would tell you a lot about what they believe about a whole range of issues, a very good question to ask people is how they feel about the death penalty. That's why prosecutors like to ask jurors about it, because it tells them a lot. This comes back to your point about the '70s. That was a time of great political change in this country, moving from somewhat progressive and liberal to the right. It was a time of an increasing sense of a need for self-reliance and of moving away from government control; it was a time of increasing faith in individualism and things like that. Associated with those views is the belief that we're all free actors who ought to be able to do what we want but bear the responsibility for what we do. One implication of that responsibility is that we may have to pay the ultimate price if our acts are bad enough. I also think that people in a highly individualistic society that values freedom worry a lot more about how the next guy exercises his freedom, especially where there aren't so many public and private institutions to control that freedom. It is ironic that a country that believes in a lot of freedom is also unusually repressive in terms of the number of people in prison, and in its use of the death penalty.

Randolph N. Stone: Yes, I think those are good reasons, but I think racism is one of the driving forces, particularly if you look at, historically, who the death penalty has been imposed on and for what crimes. Until the '70s, black men were executed for rape of white women. As recently as McCleskey v. Georgia, which was a famous death-penalty case in which the Supreme Court looked at rather persuasive statistics that analyzed the imposition of the death penalty, the driving factors were the race of the defendant and the race of the victim. The study concluded that the odds of being sentenced to death were 4.3 times greater for defendants who killed whites than for defendants who killed blacks--even though, during that period of the study, roughly half of the victims of homicide were black. The racial angle, unfortunately, cannot really be minimized in the imposition of the death penalty in the United States.

Brooke Masters: What do you think about why it's persisted?

Joseph Hoffman: I'd like to try to separate out two questions, or two issues. One is the way that we decide who gets the death penalty in this country. I'm guessing that all four of us on this panel would have some pretty strong criticisms of the way we make the selection decision, and indeed there are disparities in our decisions about death, disparities of all kinds, race being just one of them. On the underlying question of why the United States continues to believe in the death penalty, I think that today, even if people did not conceptualize some of these cases in terms of race, Americans would still continue to support the death penalty by a pretty clear majority. Jim may have hit on the reason we are so different from our European brothers and sisters on this question: because of America's very strong belief in personal responsibility and free will, and the notion that you are an individual who is responsible for your own actions. We have never, as a society, been willing to accept the idea that someone's choices are essentially determined by things that society has done to them or for them or about them. That kind of notion about an individual being connected more closely into a social framework is something that I think is fairly well accepted within a European context, but it is not accepted at all in the United States. We tend to believe much more strongly in the notion that you're an individual no matter what happened to you as a child, no matter what happened to you as a teenager, no matter what happened to you as an adult, and that you still bear the personal responsibility for the choices you make. It is that belief more than anything else that is at the crux of just about every death-penalty case and every death-sentencing hearing. It's what defense lawyers in capital cases try to overcome, and it's what prosecutors in death-sentencing hearings try to remind the jury about. And I think on that belief alone you would find a dramatic difference between Americans and Europeans.

William Schabas: I'd be cautious about too much of an American exceptionalist view. I take all these points, and I agree with many of them trying to account for the differences. At the same time, the differences aren't all that great between the two societies, and, as I say, it has to be broader than Europe, because you have abolition of the death penalty in South Africa, for example, and deep into Asia now--because when we talk about Europe that includes Russia, that includes Siberia, it includes many of the former Soviet republics. If you did a public opinion poll in Russia about the death penalty today, you would probably get numbers that aren't very different from the numbers in the United States. If you did one in South Africa, you'd get numbers that aren't very different, and yet, in those two countries, the death penalty has, in the last six or seven years, been abolished.

Part of the explanation is in more mundane things. One of the things that people in the United States take for granted but that absolutely horrifies people from other countries are judges who are elected, and prosecutors who are elected. That just skews the system altogether, in that the people who are administering the system have to pander to the most sort of base and vile instincts in society, which unfortunately are there. I mean, if judges in Ireland or in France or in Russia or in South Africa were elected, you'd probably get judges who wanted to impose the death penalty there, too.

Brooke Masters: But it's juries, not judges, that impose it in the United States, fundamentally. Judges rarely reduce, it is true, but juries do.

William Schabas: Prosecutors ask for it, first of all. And you have the situation of judicial abolition of the death penalty, which has happened in so many other countries,
Thinking Point
Do you think it is a conflict of interest for elected judges and prosecutors to be involved in death-penalty cases?
where judges knocked it out before legislators did. It's become so difficult now, because of the screening not just for the judges, who are elected, but also for federal judges, who have to go through this process of being vetted for their political correctness--or incorrectness, rather--before they get appointed. They all get knocked out. I think it would be impossible for a judge who is outspoken in opposition to the death penalty, a federal judge, to get appointed now. They'd never get past the appointment process.

James Liebman: Let me ask a question. I've heard the point that you make, that if you look at Canada, or even England, there's probably majority support for the death penalty after a particularly bad crime occurs. But I've also heard it said that the elites in most European countries simply won't let it get back onto the political scene because the elites basically all agree that you can do without a death penalty. So that keeps the issue off the screen, even though, as you say, the public support might be different. And I think that might be there to have the death penalty. Also, in this country, there's so much decentralization of the government, with our federalism and all of that, that there's not just a national elite that you have to worry about. You also have to worry about a government in each of the states that essentially controls whether there's a death penalty there or not.

William Schabas: But, in the United States, you've come close to judicial abolition twice in the last 25 years. The case that Randolph referred to, the McCleskey case before the Supreme Court in 1987, came within one vote of the Supreme Court knocking it out forever. The only way you would have been able to bring it back would have been with a Constitutional amendment allowing for the death penalty, and that is a complicated matter and probably would never have come to pass. You came within a hairbreadth, and the judge who was the swing vote later said that it was the decision in his whole life that he regretted the most, so that he opposed the death penalty. So the elites here have come very close to it as well, in terms of abolishing it.

Brooke Masters: The decentralization argument is important, because if you look at the places where people are more strongly going to be anti-death penalty, they have abolished it. There isn't a death penalty in the Northeast, which is the most liberal part of the country.

Joseph Hoffman: I want to not only agree that the local level is important; I also want to present the other side of the picture, which is that a lot of the international developments that you've described are developments that are driven by a global consensus and international law consensus that the United States simply, for better or for worse, does not view itself as being party to. It is, again, one of the peculiar aspects of legal life in the United States that our Supreme Court and our state courts do not, on issues of crime control and other issues as well--education, family law--think they're bound by the rules of the international legal community on this matter. I would guess that, of the countries you've years that have gone in the direction of abolition, some of which may have done so against the sort of court of public opinion in those countries, the overwhelming majority of those did so because of pressure to conform to an international legal regime--whether it was something they had to do to join the European Union, because there's a requirement that you move toward abolition of the death penalty in order to be a full-fledged member of that group, or whether the pressure comes from elsewhere. Japan still has a death penalty. It is still active; it still executes people. But there's growing pressure in Japan, because of the feeling that the United Nations conventions maybe suggest that they ought to be heading toward abolition. In other countries, that has a big effect. In the United States, it has virtually no effect on the decision makers who control these matters, judges and legislators. They just don't care very much what the European Union thinks about the morality or the appropriateness of the death penalty. That's another reason for the developments in the United States. We think it's our own internal matter to decide. And you're right that there are at least a couple of occasions when our Supreme Court came very close to making a momentous decision, but I'm not sure I would characterize it quite the way you did. Certainly in McCleskey, the Supreme Court could have done something that would have struck down the death penalty in the state of Georgia, where the evidence established this racial disparity. Who knows how far that decision would or would not have gone in other states? We now know that there's evidence of similar disparity in some other states, but until the evidence was actually vetted and tested in court, we can't say for sure that McCleskey would have invalidated the death penalty nationwide. In any event, American courts and American legislators think that this is a decision for America to make and are not particularly concerned that people in the European Union or the UN might think that we're out of step with an international consensus.

Randolph N. Stone: Let me respond to the two points you made, which I think are very good. First, shortly after the McCleskey opinion there were a number of states that duplicated the results of the study. I think it's reasonable to say that in most states where there is a significant minority population, the results in McCleskey could be duplicated. About the second point on the international consensus, you're absolutely right. But I think even in the United States there is a growing movement. It's slow, and it's small, but eventually I'm hoping that the United States will come into line with the rest of the world on this issue as more and more of us are educated about international norms. Whether it will happen quickly or not is certainly a matter of debate.

William Schabas: Certainly internationally, one of the big things propelling abolition forward is that international legal norms are discouraging and ultimately prohibiting the death penalty. When Russia joined the Council of Europe, during the 1990s, that was it. It was a condition. Russia did it. Public opinion, Yeltsin, they were all in favor of the death penalty, but in order to get not only the legal right to join the Council of Europe but also the legitimacy that they sought as a progressive, modern state, it involved abolition of the death penalty. In South Africa, post-apartheid resistance to the death penalty was associated--far greater than in the United States, and despite the enormous crime rates-- with repression, with racism, with apartheid. But you make a good point about the regional differences, considering that in the Northeast, the progressive-liberal Northeast, the death penalty is really not going to happen, although it has been brought back here in New York.

Brooke Masters: They have yet to execute anyone. They have yet to execute anyone in New Jersey, either.

William Schabas: But we all know that the heart of the death penalty in the United States is south of the Mason-Dixon Line, and it's just back to the point that Randolph and I were making earlier, that so much of it is bound up with the racist past and present of the United States.

SESSION 2: Possibilities for Error

Brooke Masters: Apart from whether, as a human-rights issue, we ought to have the death penalty, what's the problem with the way the death penalty is being administered in the United States--both in terms of racial and economic bias and in terms of sheer mistake? Perhaps Professor Liebman might want to tell us about his work.

video launch video Panelists discuss whether the errors that arise in the administration of the death penalty in the United States are symbolic of systemic disorder or whether the death penalty presents a unique set of circumstances.
(22:09 min; download 22 MB)

James Liebman: This is an important point, and it ties into things that we talked about before. I think that the issue in the United States is now becoming one of public policy, not of law. The issue has been taken away from the courts, which have really controlled it for decades, and people are saying, "We're for the death penalty, by and large, but we recognize that it's a government system, and we want the system to work. We want it to serve some purposes."

So the question is: Does it serve those purposes? And that's where I think a lot of people, even death penalty supporters, think a lot of problems are emerging. Colleagues and I at Columbia have done a study of death penalty cases during 23 years following the reinstitution of the death penalty, after the moratorium that existed in this country in the '60s and '70s. We found that 68 percent of the death sentences imposed in this country during that period were found to be so legally flawed that they couldn't be carried out and had to be overturned. Most of those legal errors are the kinds that do affect the reliability of the outcome in some way or another. There had to be a finding of an effect on reliability, or a finding of no violation there. As a result of all of that error, it takes an average now of 12 or 13 years to get from death sentence to execution. Add all this up, and it means that you have many people getting sentenced to death, very few people getting executed, and in the meantime there's a huge amount of delay. The average outcome is that a person sentenced to die is going to end up coming off death row because his death sentence is found by the courts to be invalid. And that raises two big questions. First, if there's that much error in the system, how can we be sure we're catching all of the errors? And if we're not catching all of the errors, so that some serious errors that undermine accuracy slip through the net, is it probable that people who are innocent are being executed, or that people who may have committed a crime but are legally ineligible for the death penalty are being executed by mistake?

We know the courts fail to catch mistakes of this sort, because there are a number of people who have been found to be innocent before they got executed but after the courts said it was fine to execute them. In these cases, it was not the courts that caught the problem but the accidental intervention of a journalist or a moviemaker or some undergraduate students that led to the discovery that the person was innocent. So one big problem is just error and bad outcomes leading to the execution of the wrong person.

The second problem, which I think is more widespread and may be more important to many people, is that this is a system that doesn't work. It's essentially a system designed to make mistakes and then try to catch and cure them. It's an expensive machine for making mistakes and trying to fix them. Yet, who in their right mind would design a production scheme or a machine to make errors and then try to correct them? Because that in essence is how our system works today. A lot of people, whatever their views on the death penalty, are reaching the conclusion that it is not a valid way for the government to be operating.

Brooke Masters: Professor Stone, you've done a lot of these cases. What kinds of mistakes do get made?

Randolph N. Stone: In Illinois, there's a moratorium on the death penalty imposed by the governor after about a dozen individuals who had been sentenced to death were later discovered to be innocent. The most recent case before the moratorium was a gentleman who was two or three days away from being executed and the defense lawyers were focusing on his mental abilities, because his IQ was allegedly very low. As Professor Liebman pointed out, a group of journalism students went out and discovered that someone else had actually committed the crime, and they interviewed that individual, who ultimately confessed. The errors that led to the innocent man being convicted-- inadequate defense resources and alleged police misconduct--are tolerated by the system.

Moreover, prosecutorial misconduct regarding withholding exculpatory evidence exists, because, as we all know, or at least we should know, in the trial setting it's a very competitive enterprise. Once

In your opinion, should the American capital-punishment system be abolished, even if DNA evidence or other scientific evidence can prove that a defendant is guilty?

One argument for a moratorium on the death penalty is that the judicial system is not always confident that every defendant is, in fact, guilty of the crime they are charged with. If DNA evidence could definitively prove a defendant's guilt, thereby improving sentencing accuracy, would you still oppose the death penalty?

people get involved in the trial, the prosecution wants to win. And in most cases the crime typically is often very heinous, a very brutal crime. The prosecutors become convinced that the person is guilty, and then they cut corners, withhold evidence, don't produce exculpatory evidence, hide reports. Finally, people make mistakes. The identification testimony of witnesses is often given a much greater weight than it should be, and so we have a series of cases where people, victims, misidentify an individual. Later, DNA evidence or other scientific evidence proves that the defendant could not have committed the crime. So, in sum, you're talking about defense incompetence based on resources in many instances, not having the resources to hire investigators, etc. You're talking about prosecutorial misconduct, you're talking about police misconduct or incompetence in some instances, and you're talking about judicial indifference in many of these cases where the system encourages judges to focus on case processing and efficiency as opposed to fairness and justice. All of those circumstances contribute to the error that occurs in capital cases, and it's merely symbolic of the way our criminal-justice system functions. The good thing about this spotlight on capital cases is that hopefully it will have some impact on the rest of the criminal-justice system and some seepage in reforming the way our system operates.

Brooke Masters: Do you think capital punishment is symbolic of a problem that is larger than just what happens in death-penalty cases?

Joseph Hoffman: On that point, I agree that the death penalty is the best and worst of our criminal-justice system. There's no doubt that the same kinds of problems that have come to light in capital cases can also happen and do also happen in other kinds of cases. It's in that sense that the reforms that people are discussing in the capital-case context maybe ought to be considered for other kinds of cases as well. But I want to circle back to the points that have just been made by Jim and by Randolph, because I want to present what may be a slightly different way of looking at the same situation.

There is no question in anyone's mind, no matter what their view is about capital punishment, that when a prosecutor misbehaves, hides evidence, when a defense attorney, as has happened on occasion, falls asleep during a capital trial, when a prosecutor makes a decision to seek the death penalty on bases other than the heinousness of the crime, on bases having to do with illegitimate factors or illegitimate motives, there's no question that those kinds of things are just plain wrong and ought to be prevented if it's possible to do that. It will be difficult in a system of human discretionary decision making, but we ought to be doing everything we can to prevent those things from happening, and we ought to be doing everything we can to identify those cases after the fact and correct them if we have not prevented them from happening initially. The problem is trying to figure out the depth of this problem. The kinds of errors that go to the substantive justice of the trial and the sentence undermine our confidence in the two key questions: Is this really the person that did this crime? And, if so, is this a person who deserves to die for the crime that they committed? Those are the two questions that we all ought to care about deeply and passionately, no matter what our view is about capital punishment. We've simply got to leave no stone unturned to try to fix any action, any misbehavior, any error that undermines our confidence in those two questions and the answers to those two questions.

What we don't yet know--and I know, Jim, that your study is going into another phase where we may get more information very soon about this--is of the 68 percent of the cases that got reversed during the period of this study, how many of those are cases where we really do have serious doubts about whether this person committed this crime, and about whether they deserve to die? What we do know is that the 68 percent were all reversed because of some kind of procedural irregularity. Some of those procedural irregularities are the kind that Randolph was just talking about, that we all ought to be staying awake at night worrying about. But many of the procedural irregularities accounted for in that pool of reversed cases are not that kind of error.

Brooke Masters: What's a not very important error?

Joseph Hoffman: A jury instruction error, where the language of the jury instruction may have misled a juror into thinking something about the way they were supposed to process this evidence compared with the way we'd like them to process the evidence. We would in a capital case want to correct that error, because it has some potential impact on the reliability of the outcome. But if you had 100 cases where the judge gave that instruction, maybe only five or six of them would be cases where the jury would be actually affected by it. We don't know. We can't know.

James Liebman: I strongly disagree on that point. I'll put my marker in here so we can come back to it.

Joseph Hoffman: I understand, and my guess is we'll continue to disagree about that point. There is no doubt that in capital cases the procedural rules that the courts have created were created in large measure because everybody recognized what the stakes were. We have a term called "super due process" that those of us in the legal business talk about in capital cases, and what it means is that we create rules that don't apply to other kinds of cases. They are special rules that, if they're violated, can lead to the reversal of a sentence or even a conviction. Those rules were made for good reasons, but it doesn't mean that every violation of such a rule means that we really would be in doubt about the result that was reached in that case. Would some of those results be questioned? Yes. Would all of them be questioned just because of that procedural error? No. We don't know how many of those errors--within that class of reversals, within that class of errors, as it were--are ones that really undermine our confidence that we got the right guy and that they deserve to die.

James Liebman: Let me offer some perspective on this. First of all, almost all violations that result in reversal require some kind of showing of prejudice, and for the most part--for most of the big sources of error--you have to show not that the error may have had an effect, but that there is reasonable probability that it did affect the outcome. For example, you can have a lawyer who slept through the entire trial, but that doesn't mean you have the case reversed. In addition, you have to show a reasonable probability that the outcome would have been different if the lawyer had been awake.

The same thing is true with prosecutorial misconduct, and with jury instructions. There has to be a reasonable probability that the jurors did the wrong thing because they got the wrong instruction. Most of these errors undermine reliability. Second, we found error rates above 50 percent in every single one of the 28 states we looked at save one, so you're finding error all across the board. Third, in all but one of the 23 years we examined, we found a 50 percent error rate. Fourth, we looked at what happened to these cases when the error was discovered and the case was sent back for retrial. Are the errors serious enough so that when you cure the error the result changes? We found that in 82 percent of those cases (state post-conviction cases) where we have the data, the result after you cured the error was very different indeed: a sentence less than death. In 7 percent of those cases, the defendant was acquitted. So we think there is a lot of evidence, even based on what we know, that these errors do go to the heart of the matter, that they do cause people to be condemned who by all accounts shouldn't be. They are errors that give you pause. This doesn't mean that the person in each one of those cases was innocent, but it does mean that there often is a defect in the case that creates a real doubt about either guilt or whether the death penalty was deserved. And when you have that over and over again, across 23 years, across 28 states, at such high rates, it means that something is wrong with the way the system is working.

Randolph N. Stone: Let me jump in just briefly. I think the two questions you pose are good ones. One is: Is the person who is on trial, or charged, the person who committed the crime? Certainly that's a question that we want to know. But I think we also want to know: Did the person receive a fair trial? Regardless of whether or not they actually committed the crime, there are some errors that shock the conscience so much that the person is deprived of a fair trial. For example, when a prosecutor excludes all racial minorities from a jury, even though the person committed the crime, the fairness in the process has been so violated that that person should receive a new trial. In Chicago, we had a series of cases where the police tortured people to confess to crimes. Now, some of those people actually committed the crime, but the fact that the fairness of the process was so violated by this police conduct entitled those people to a new trial, and I don't think you would disagree with that.

Joseph Hoffman: Of course not. I don't think any reasonable person would disagree that when a serious procedural error deprives someone of a fair trial--for example, in the exact examples that you gave--the legal system should remedy that. I was only challenging the claim that 68 percent of death penalty cases were erroneous in a sense that undermined the substantive justice of that verdict. We could probably go for hours on this point, Jim, but I continue to believe that, subject to enhancements and further stages of the study, the study that's been done thus far does not document that 68 percent of the cases were reversed because there was serious substantive doubt. Let me just give you an example.

In the past 25 years of Supreme Court litigation, we've all seen examples of these kinds of cases where you read the facts and you read what happened in the trial court, and a reasonable person would be left with some question about whether the right result was reached. Under our system of justice--and I think this has been a mistake; I mean, this has been a problem with our system of justice--typically our Supreme Court has not felt that it had the power or the right or the moral authority to simply reach in and say, "I disagree with this result. I think you, the jury, reached the wrong result in this case. This person either was innocent or, alternatively, they were guilty, but this is not a case that deserves a death sentence." Our Supreme Court, for a variety of reasons, has felt essentially disabled from making that kind of direct ruling that would result in overturning that case and that case alone. Instead, repeatedly, it has looked to ask, "Well, why did that result come out wrong? There must have been some procedural flaw in that trial or in that sentencing procedure. Something must have gone wrong procedurally that would have led to that result." Of course, in that particular case you could say that I think the procedural flaw led to this bad result. But when the Supreme Court announces its new procedural rule, you've got to do it differently. Because this flaw led to a bad result, hundreds of other cases, historically--this is changing now--hundreds of other death penalty cases would also have to be reversed on that same ground. Because the same procedural flaw would have existed in those other cases, and the result in those cases may not have been in serious doubt. We don't know in how many of those cases the result would be in doubt or in how many they wouldn't have been in doubt.

James Liebman: There's another statistic that's important here, not from our study, that is very stable and worth looking at. Essentially from the beginning of the reinstatement of the death penalty, in 1973, till today, it has been the case, year in and year out, that for about every seven people who are executed there's one person on death row who is exonerated--or at least about whom there is no evidence of guilt. Year in and year out, it just kind of works out that there's one exonerated death-row inmate for every seven or so executed. True, it's not as bad in Illinois, where essentially you have a one-to-one ratio of people being found innocent to people being executed. But even a one-to-seven, one-to-eight ratio is reason to be concerned about how we can be generating that much error at that serious level. And innocent people who are sentenced to die are just the tip of the iceberg. You have to think about all the people who are guilty of something but not guilty of a crime for which the law makes the death penalty even permissible who get the death penalty and are very likely executed.

William Schabas: I do have another point here, aside from quarreling about the statistics, and that is: If you want to justify the death penalty--and we're not getting into the arguments about retribution and deterrence and all the classic arguments--you have to have a system of imposing the death penalty that's functional, that works more or less reliably. What the study appears to show--and no one seems to be quarreling with it--is that the whole system is dysfunctional in a rather profound way. Maybe it's one that you can start to correct and see about correcting, but it seems to be terribly dysfunctional. So what possible justification can you have for it?

We're terrified at the idea of executing an innocent person, but we should be terrified at the idea of even sending an innocent person to jail. But you can correct that, of course. You can go back on it. But in terms of a public justification, it doesn't fill any retributive goal if it's so haphazard that it's like a shotgun. What was the expression the judge used? It's like being struck by lightning.

James Liebman: Let me give some statistics on that point, because I think it's really important. In the United States between 1973 and 1995, in those 23 years, the states imposed thousands of death sentences. Among those death sentences, only 5 percent were carried out. In no year during that period were more than 2.5 percent of the people on death row executed. In most years it was between .5 percent and 1.5 percent of death row. So, from the standpoint of death-penalty supporters, this is a system that is not functioning.

Most people who support the death penalty assume, I think, that if we give somebody the death penalty, he or she probably deserves it, and that the sentence will most likely be carried out and that it will occur within a reasonable time. But whatever else is true, that's not happening. And the main reason it's not happening is that there in fact is so much error in the system that we have to examine every case carefully, which leads us to find yet more error, which slows the process down. So the problem is not only that we are risking bad outcomes but that we have a bad process, whatever the outcomes are. And the two problems are related and mutually reinforcing.

SESSION 3: Death Penalty Reform

Joseph Hoffman: I want to point out one little bit of evidence that demonstrates that the problem of error is real but maybe not as large a problem, in terms of its magnitude or its numbers, as what is being described.
video launch video Panelists consider the possibility of reforming the administration of the death penalty. Is there an argument for a moratorium on the death sentences until the system can be changed?
(13:12 min; download 13 MB)

In the years since 1976, when the US Supreme Court reinstated capital punishment as a constitutional matter in this country, we've executed hundreds of people. No more than 100 in a year. I believe that's still true.

Brooke Masters: It was down this year.

Joseph Hoffman: No more than 100 in any given year, but many hundreds of executions. You would think that, if the system were as flawed, were as broken as it is being described, we would have multiple examples of documented cases of innocent persons being executed. Now, I know there are people looking for that.

Brooke Masters: And they haven't found them.

Joseph Hoffman: We may yet find one. I don't mean to suggest by any means that I know that all of these executions were of people who were guilty. I can't know that. And people are looking to try to find that case, but to date not a single such case has been documented. There are people who believe it to have happened, but there hasn't been definitive proof of that. And it stands at least as one sort of counterweight to the argument that these cases are so wildly out of control that two-thirds of them are coming out with judgments that are substantively in doubt.

William Schabas: You seem to agree that the system is in some way dysfunctional, although you quarrel about the degree.

Joseph Hoffman: Yes.

William Schabas: Do you agree with the idea that, until it can be rectified, there should be a moratorium on capital punishment?

Joseph Hoffman: When the evidence in Illinois is that the system there, for a variety of reasons, was so dysfunctional that the number of executions equaled the number of people who were found to be innocent, I think you can easily justify making the decision that that moratorium was correct.

William Schabas: What would be an acceptable number. If it's not 50 percent, would 5 percent be enough?

Joseph Hoffman: If I knew that 5 percent of the people being executed were innocent, then of course we should not continue to--

William Schabas: We're talking about people on death row.

Joseph Hoffman: Right.

William Schabas: If we show that there were serious doubts about the guilt of 5 percent of the people on death row, is that enough for a moratorium?

Joseph Hoffman: Not if all those errors are being corrected, no.

James Liebman: We know that it's about 15 percent, if you compare the number of executions and exonerations over time. Let me just say one quick thing about this issue of how much we can infer from the fact that nobody has yet been shown to be innocent and executed. In England, where the death penalty was abolished in part because of a realization that innocent people had been executed, there was a capacity to do an inquest, an actual inquest, where the government mobilized its resources and looked to find out whether that greatest of miscarriages had occurred. Canada has that same inquest procedure, but there is no such power in the United States. And it's even worse than that. or the press wanted to do an inquest. The first thing that they would do is to go to the prosecutor and say, "Give us the file on the case in question." They would do that because the prosecutor's file has the most concentrated evidence about the case. If such a request is made in the United States, the answer is twofold. One: "You don't have the right to that file. That file is private." Prosecutors repeatedly assert that nobody in the US has been executed who is innocent, and yet they won't turn over the files that would show whether they're right. If they really believe this, they should turn over the files and let's find out. Second, in many states those files are destroyed. Even DNA evidence that would show whether the prosecution is right or wrong, whether innocent people have been executed, is destroyed. It seems to me that that's the counterweight to the point Joe makes. You have to take that point with a grain of salt, because, if it's really true, prosecutors wouldn't mind turning over these files to prove that they're right.

Brooke Masters: It's true that there are newspapers right now suing to try to test DNA of people who are dead, and in general the state and the prosecutor fight it tooth and nail, which always strikes me as rather silly, because if you really think you've got the right guy, what's the harm in testing?

Joseph Hoffman: Right, and I certainly would not defend prosecutors trying to stonewall investigations. There's no good reason I can see for that, other than a feeling on their part that this is all just part of trying to make them look bad. But if there's something there that's going to make them look bad, then we ought to know about it. I do think that until the evidence of people actually being executed who are innocent begins to surface, and there are people looking for it, it's going to be hard to indict the system at the level that I think you want to indict it, based on the evidence about what courts do in overturning decisions.

James Liebman: Hold an inquest, and then I'd be convinced.

Randolph N. Stone: I just want to defend Illinois for a minute. What happened in Illinois was the result of a group of lawyers and journalists in Illinois who are very dedicated to the proper functioning of the criminal-justice process and the administration of the death penalty. I maintain that Illinois is probably no worse than any other state where there is a significant death-row population, in terms of the reliability of the verdicts. But you have an Illinois Supreme Court that looks at death penalty cases very carefully, and you have a group of appellate defenders and private lawyers who are very competent in looking at death cases. I think that has resulted in the specific numbers that have been produced regarding reversals. Finally, we have a governor who was willing to take the courageous step of imposing a moratorium. So it was a confluence of factors that resulted in the situation in Illinois. I am confident that those results will be duplicated in other states.

The other point about the second question you raised: Does this person deserve to die? Well, I know we're not going to get off into the moral aspects of it, but my position is that no one deserves to die at the hands of the government. But, not withstanding that fact, it's a question of luck. If you went to the Illinois maximum-security prison and looked at the 20 worst cases of people on death row, and then you looked at 20 individuals convicted of first-degree murder, you would find that there's not that much difference in terms of the brutality, the heinousness of the crime, between the 20 people serving life with no parole and those on death row. It's serendipity. To some extent, it's what judge that individual wound up in front of. What defense lawyer represented the individual who got life versus the individual who got death? Who was the prosecutor in the case?

Brooke Masters: Was the jury considering life and death two days before Christmas and inclined to want to go home?

Randolph N. Stone: Right. The time of the trial. There're so many factors that can flip a case from life with no parole to death that have nothing to do with that ultimate question, as you put it: Does this individual deserve to die? Some lawyers can manipulate the system to get cases in front of judges where the likelihood of the imposition of death is very slim. And that's just a factor that relates to the experience of the lawyer, the resources that are accorded to that particular case. There are so many variables that it's almost ludicrous to suggest that the system is making a rational decision in these cases.

Joseph Hoffman: I'll one-up you, then, because I think that we haven't even talked about or at least have only briefly talked about the two stages of this process that have the greatest impact on the kind of irrationality that you just identified. We've been focusing largely on what happens within the defined contours of the legal system from the time that the capital charge is made to the time that the case is fully reviewed on appeal or in federal habeas corpus review. Whatever one may think of those aspects of the system and how broken they are or not, there are two phases of the system that occur outside of the confines of the sort of legal controls. One is the decision by the prosecutor to seek the death penalty or not to seek it. In New York state, for example, where the death penalty is now revived as a legal matter, although no one has yet been executed, there are district attorneys who are on record as saying that they will not seek the death penalty although it's legal and although it might apply to the facts of the case; that in their jurisdiction they won't seek it. In other parts of New York state, the DAs obviously are perfectly willing to use that statute and to go after the death penalty. In individual cases, at least the DAs' decisions are on record as to why they're taking that stand. In a lot of individual cases, DAs and prosecutors don't even have to say why they're deciding to seek the death penalty or not to seek it, and the legal system can only take the case as it comes from the prosecutor's initial charging decision.

Brooke Masters: Isn't there some evidence that that's where the racial bias really clicks in?

Joseph Hoffman: Yes, at least that was believed to be true at the time of the McCleskey study. That was at least a significant component of it, and it seems pretty clear that any stage that involves an essentially discretionary decision is a stage at which people's biases can have an impact. The other stage, which is almost never talked about, is the stage of deciding who among the people on death row will actually have an execution date set for them and find themselves propelled towards execution. In a few states, that decision is made in a legally guided way, but in most jurisdictions that decision is more political than legal. That is to say, a governor or some other elected official decides to sign a warrant saying that John Smith will have an execution date set. It's not as if there's a system that rations the executions and decides who gets lined up first for that. In terms of the haphazardness of who actually makes it to the stage of the execution, there's almost no control over that whatsoever.

Now, it was mentioned earlier that we execute very few people compared with the number of people that we give death sentences to. I think it's perfectly accurate to say that there isn't enough of a demand for executions, for death, to actually execute the numbers of people that we put on death row every year. That's why the number on death row keeps going up, because we put more people there than we as a society really want to execute, and that's reflected in the political decisions of the people who sign these death warrants. In some states, there is no reasonable prospect of having an execution for the next couple of years, because, politically speaking, the people who would have to make that decision don't see any political value in pushing that case forward. Now, that's an example of where, if somebody wanted to try to rationalize the system and make sure it really was the worst people, the worst criminals, who got executed, one would want to take a look at that. But those two stages at the very front end and at the very back end we actually don't look at much at all, in the legal sense.

William Schabas: These are just more arguments that would seem to bolster Jim's point and show that it's a system that is not working in any reasonable and rational way, and therefore can't be justified. Again, just so there's no mistake about it, people who are arguing against the use of capital punishment are not arguing for letting everybody out of jail.

Joseph Hoffman: Of course not.

William Schabas: Really, all what we have to do is to be able to justify this major incremental increase over life imprisonment, in some cases without parole. And if that's all we're talking about, it's got to be a rational system. And it's not. And you've just given more arguments for why it isn't.

Joseph Hoffman: If the argument is that the system has got to be perfect in its allocation, or pretty close to it, if the 100 people that are going to be executed next year in this country have to be the 100 most deserving out of the 3,500 on death row, then the system will in fact not pass that test. There's no question about that. I don't think everyone thinks that that's the test that the death penalty has to meet in order to be sustained. But if that's the test, the system will definitely fail.

SESSION 4: In the Public Eye

Brooke Masters: There does seem to be something going on in the United States in the last 18 months. The death penalty, I have to say, was a dead issue five years ago. The only time people talked about the death penalty, they'd say, "Let's execute some more people." Why now? Why is everybody suddenly talking about the death penalty again? Why are we here?
video launch video Panelists consider why the death penalty is now so much in the public eye. They offer opinions about whether the United States will still be executing people in 2015.
(18:39 min; download 18.5 MB)

William Schabas: People in the abolitionist movement used to say that support for the death penalty in the United States was a mile wide and an inch deep, and it looks like that's starting to crack, to me. In some way. And more and more there is a realization, even at the highest levels, of governors and people like this, that there is something seriously wrong about it and that it's not worth it. It's just not cost-effective for the amount of energy and money that gets put into it; it doesn't give anything to a society that does have serious problems with crime rates and violent crime and needs to deal with them. This is just such a colossal waste of energy and resources that ought to be put into more productive forms of law enforcement.

Randolph N. Stone: If I had to pick one thing that has made a difference--and I agree there probably are a number of variables--the one thing I would pick is technology. You can now, by DNA technology, for example, prove that someone didn't commit a crime. As technology improves and becomes more available, more people in our society will realize that we're convicting people who are innocent, who can actually be proven innocent. The publication of these cases, the Innocence Projects around the country, and all the people who are focusing on technology as a way to actually prove innocence--we haven't had that before. I think that's been a major factor contributing to the shift in perception.

Brooke Masters: Is there anything to the fact that, because we have executed a significant number of people over the last three or four years, more than a handful in every state, a lot of juries give the death penalty because they think, "The guy will get out anyway if I don't give him the death sentence"? Now they're facing the fact that people are going to die.

James Liebman: There is some evidence that juries and maybe the public at large are more willing to use death sentences if they don't believe they will mature into executions. We didn't used to think of Texas as the big execution state. Instead, it was Louisiana. In the late 1980s, Louisiana executed a whole bunch of people within a very short span of time, and immediately after that it was very difficult to get death sentences from juries in Louisiana. People thought there might be a connection there, and I do think the fact that there were in 1999 almost 100 executions, 99 executions, did bring the reality of executions home to the people. But I think the point that's really coming home to people goes back to our earlier discussion about why Americans want the death penalty. Americans are individualistic, freedom loving, all of that. That makes them suspicious of government. They're willing to use government to punish other people when they feel those other people are threatening their freedom, but they also worry about how government exercises its power. They worry about the abuse of power by the government, and about government incompetence.

This point was captured in an editorial that was written by George Will, a conservative columnist, who said, "I've been a strong supporter of the death penalty for years, but it suddenly dawned on me that the institution that decides whether or not there should be a death sentence, and who gets executed, is the government. Now that there's this DNA evidence proving that government makes mistakes, it makes me realize that the death penalty is like any other government process. It's subject to problems, it's subject to error, it's subject to incompetence, it's even subject to malfeasance and bad faith." Americans are very mistrustful of government; they believe, for example, that prosecutorial misconduct is a real possibility. This shows up in the polls. They may not care about executing juveniles, but they do care about prosecutorial misconduct. And I think that that's what's happening now. There is a sense that this is a government operation that needs scrutiny. I don't know where it will lead. Americans have scrutinized a lot of their institutions recently, and although we've "ended welfare as we know it," we haven't entirely ended welfare. This could be a reformist kind of thing or it could be an abolitionist thing in the end. We don't know where it's really going.

Joseph Hoffman: I agree with that. I don't necessarily see anything that I can describe as a trend that means anything in terms of either the number of death sentences imposed by juries or in the number of executions--particularly the execution figures, although they were down last year--that is so dramatically affected by things that are completely independent of what we're talking about. It's affected by who the governor is, what the political climate is in a state, so I don't see that as evidence of a shift.

The shift is the sea change in the court of public opinion. And, in that sense, it is coming back to these core concerns about whether the system is getting the right people convicted and whether they are the people who should be given the death penalty.

The triple whammy, in my analysis, starts back with the most celebrated criminal-justice case of our time for all kinds of reasons, the O.J. Simpson case, which if nothing else convinced people that the criminal-justice system could be screwed up in a lot of ways. From the investigation to the prosecutor's behavior to the defense attorney's behavior to the judge's behavior to the jury's behavior, at almost every turn, people saw every day on the television a case that convinced them that, yes, the system can make mistakes. People have done studies about respect for juries and so forth, and we've gone through a period of five, six, eight years now where the public has been primed to believe that mistakes can be made at the trial level. Then you combine that with the Illinois situation of the governor, a Republican governor, announcing that he is so concerned about error and substantive error that he's going to stop executions in Illinois. Then you combine that with Jim's own study, which got a lot of press last summer for a lot of good reasons. In the court of public opinion, people have become prepared to accept the idea that there is this rampant error.

I think the public is at the point where it's either going to demand reform or it's going to become fed up with the way the system is working, at least in some places. I can't generalize and say that this will happen in every state, but in some states I think you're going to see a serious move to abolition if the prosecutors and the judges do not take the steps that the public feels are needed to find and correct these error rates. Add to that the cost factor, which we haven't put on the table explicitly; most of the public doesn't realize that the legal machinery of the death penalty costs a lot more than keeping someone in prison for the rest of their life. There were legislative hearings in my home state of Indiana on abolition of the death penalty last year for the first time since 1976. It's not because Indiana suddenly went soft on the death penalty; it's because the legislators who agreed to hold the hearings didn't want to raise taxes, and they saw that that's where they were heading. If we continued to put more people on death row and continued to have litigation in these death penalty cases, they would have to raise taxes, and that changed their view about whether to consider abolition. They didn't do it, but they were willing to consider it.

Governor Carnahan and Papal Appeal
In January 1999, Missouri Governor Mel Carnahan met with Pope John Paul II in St. Louis. During that same week, convicted murderer Darrell Mease was scheduled to die. In response to papal appeal on behalf of Mease, Governor Carnahan issued a commutation on Mease's execution.

Mease was convicted of gunning down 19-year-old William Lawrence. He was also charged with murdering Lawrence's grandparents.

William Schabas: We're just seeing a gap of 20 years, seeing the United States following the rest of the world, and maybe the growing international consensus on this subject is in its own way percolating into the United States. Agreed, it's a society and a political culture that's very resistant to international public opinion, but it's not totally indifferent to it. We know Governor Carnahan commuted a death sentence when the Pope asked him. It's unfortunate that the Pope doesn't ask systematically.

I think that maybe, maybe we're not giving the international context enough credit; that in some way it is influencing elites, and influencing American public opinion in its own way.

It's not in the interests of the American people to be international pariahs. Or, for that matter, to find themselves associated on this question with Iraq, China, Iran, Libya, Saudi Arabia, countries which are not even, in American public opinion, viewed with great admiration in terms of their treatment of their own populations on all kinds of questions, and that's one where there's a perfect meeting of the minds of American public opinion and these rogue states, so to speak. So maybe that's dawning on people that it's not the best company to be in.

Joseph Hoffman: I'd be careful about going too far with that argument. Probably one of the few things that happened within the past two years to get Americans back up and bolster support for the death penalty was Benetton trying to start a campaign from Italy to get Americans to abolish it. If they run in parallel, that may in fact happen. But if abolition does occur in this country it will be because of domestic concerns.

Randolph N. Stone: I think with the new president and with his increased focus on globalization, whatever that means, and the increased communications of people around the world via the Internet, and other electronic means, without a doubt at some point--it may not be in the next 20, 30 years--the United States will become more aligned with the international community, not only in the death-penalty context but in many other ways. So I think it's just a matter of time. When, as opposed to whether, it's going to happen is the question, and maybe I'm overly optimistic on the issue.

James Liebman: One place to watch right now on exactly this question is North Carolina. In Illinois, you had this very dramatic situation of more exonerations than executions, and you had a governor who took very much to heart his responsibilities in granting clemency or not, which added up to the moratorium. North Carolina is very different. There you have a spontaneous, broad-based movement for a moratorium that's really come out of the religious community. They've been slowly, careful, cautiously going city by city. Almost all of the major cities in the state now have issued a city council recommendation for a moratorium. They're working through the legislature. There's a real grassroots, broad-scale effort there, and it seems to me that that's the kind of pressure and movement that Joe is referring to. If it's going to happen, it's going to have to come from the public, and it's going to have to come widely from the public. I think that's the place to keep an eye on to see what kind of strength there is on the issue. Another thing is interesting here. Joe, Randolph and I are lawyers, and we've always thought about this issue as one for the courts to resolve. Now we're at a moment when the public is seizing this issue back and saying, "We've left it in the courts long enough. The courts have not solved it. Something has to be done about it." And for me, at least, this represents a sea change in thinking about the issue. People are saying for the first time in years that this really is not a question of law or constitutionalism or morality. It's really a question of policy that the American people are going to have to resolve state by state.

Randolph N. Stone: Just speaking about state by state, the other movement I think that is beginning to grow slowly is the idea of eliminating the death penalty for juveniles. There's still a number of states in the country where the execution of 16- and 17-year-olds is permitted, and I'm beginning to see movement in the direction of eliminating that practice, as well as focusing on the idea of abolishing executions for the mentally retarded, which still exists in some states around the country.

Joseph Hoffman: It does seem to me worth saying that--and maybe this comes back to a comment that you made near the very beginning--if this goes the way it might, it's going to be because of the basic goodness of American society, not its dark side. It will be because Americans will finally get to a point where they simply won't tolerate a system that could produce such injustice. And we will hold our breaths over the next few years to see whether that is in fact the way it's going to play out

Brooke Masters: So, bottom line, in 2015, is the United States still going to be executing people?

Joseph Hoffman: I would guess that there will be some states in 2015 that will still have an active death penalty.

Brooke Masters: Will it still be 38?

Joseph Hoffman: No, I don't think so.

William Schabas: It will stop, but I am less confident that public opinion will change dramatically. The death penalty will have been long abolished in the United States and people will still be doing public opinion polls when some heinous crime takes place showing that 75 percent of people believe in execution. That's the case elsewhere in the world. In countries that have abolished it, when some terrible crime takes place you do a poll and you find that a majority favor capital punishment. So I think it's a little unrealistic to think that it's all just going to be about public opinion polls. It's true that we're going to see what we're already seeing, that is, growing recognition that there's something profoundly wrong with how it's all administered, but even if it gets tidied up, which may happen. You may find ways to clean it up and to make it more predictable and rational and reliable capital punishment, but it's not that that has fundamentally changed minds elsewhere in the world where the death penalty has been abolished. Let me point out how recent that is. I mentioned before that in South Africa we're talking 1995. In Russia, we're talking 1997. In France, we're talking 1981, 20 years ago. Twenty years ago they were still sentencing people to death in France. So it's a recent thing; that's why looking 15 years or 14 years down the line is very realistic. But it won't just be because one day Gallup goes out and does a poll and says we're down to 49 and then all the politicians say, "OK, it's over now." I don't think that's how it's going to take place, either.

Brooke Masters: Your prediction, Professor Stone?

Randolph N. Stone: Twenty-fifteen I think is a little soon. I'd say 2025, maybe.

Brooke Masters: Professor Liebman?

James Liebman: I'm about where Randolph is. But this is a judgment I make more because I have a certain faith in the American people and in progress. However long it takes in this country, the march of progress, nationwide and internationally, has been away from the death penalty and away from that method of solving problems. And I think eventually this country will get there, but exactly how what's happening now plays into that is very hard to figure out.

Joseph Hoffman: See, I don't think this has much to do with Gallup polls; as you say, it depends on when you ask the question and under what circumstances. But I don't have any doubt at all--and I'd be interested to know if any of you do--that if there is documented evidence that is essentially unassailable that the public is willing to accept as such that an innocent person has been executed in the past 25 years during this modern era, I don't have any doubt that that will in reasonably short order lead several states, if not many states, to abolish capital punishment. It's what happened in England in the late '50s and early '60s. Abolition in England did not come from the elites. It came from three notorious cases in which people felt that there were substantive injustices that occurred. And that caused a groundswell of grassroots sentiment for abolition. And I think the same thing would happen here if there were documented evidence of a person having been put to death, even though they were innocent. I think a majority of the American people in at least a number of states would rise up and demand that the system stop, and whether they could then be convinced that there were reforms that could be adopted to make it work better, I can't say, but I don't have much doubt that that's in some sense the most obvious example of how public opinion could bring down the death penalty.

William Schabas: I wish I could agree with you, because there will still be a Timothy McVeigh, and people will say--

Brooke Masters: But that's different.

Joseph Hoffman: It is different, because the public won't necessarily be seeing those two things at the same time. What will happen is if a documented case is ever produced, then there will be an absolute firestorm of media coverage, of people writing stories about what happened to this poor person, and in that kind of maelstrom I would be very confident that in a number of states legislation would quickly come to the forefront and would abolish the death penalty, especially in those states where the support is not so deeply entrenched and not so historic.

Brooke Masters: It sounds like we're going to reconvene.

James Liebman: In the year 2015.

Joseph Hoffman: Right. And what's interesting is that the things that have happened in the past year, including Jim's study, have in some sense provided just that shadow of doubt for many people that this might be a possibility, when five years ago I think very few Americans would have entertained that as a serious, credible possibility that an innocent person had actually been executed.

Brooke Masters: So let's set a date to get back together in 2015. For Fathom, I'm Brooke Masters.


Brooke A. Masters

MastersAn 11-year-veteran at the Washington Post, Brooke Masters is a beat reporter covering federal and state appeals courts and criminal justice issues in Virginia. She has previously covered local government and higher education and has served as an assistant editor on the Post's Virginia desk.

In her current position, she has written about everything from espionage to domestic violence to grandparents' visitation rights. For the past 18 months, Masters has paid special attention to the issues of wrongful convictions and the death penalty.

Born and raised in New York City, Masters earned a bachelor's degree in American history from Harvard University. She also took time off from the Post to earn a master's degree in Third World development from the London School of Economics in 1995.


William A. Schabas

SchabasWilliam A. Schabas is director of the Irish Centre for International Rights and holder of the chair in human-rights law at the National University of Ireland, Galway. He was formerly professor of international human-rights law and criminal law at the Université de Québec à Montréal.

Schabas is also author of the highly-praised study of the abolition of the death penalty in international law, published by Cambridge University Press.


James S. Liebman

LiebmanJames S. Liebman is Simon H. Rifkind Professor of Law at Columbia Law School. Since joining the Columbia law faculty, in 1985, Liebman has written extensively on capital punishment and is the senior author of the leading American treatise and a number of articles on habeas corpus law. He has argued four major capital and habeas corpus appeals in the United States Supreme Court.

Liebman was a law clerk to Judge Carl McGowan of the US Court of Appeals for the District of Columbia Circuit from 1977 to 1978, and to Justice John Paul Stevens of the US Supreme Court from 1978 to 1979. He also served as assistant counsel for the NAACP Legal Defense and Education Fund from 1979 to 1985, specializing in capital punishment, habeas corpus and education law matters. He has also served as vice-dean of the Columbia Law School.

In addition to publishing numerous books and papers on the death penalty, educational choice and other topics, Liebman has authored op-eds for various publications, including the Christian Science Monitor, the Atlanta Constitution, The Nation and New York Newsday. He has also testified before Congress on a number of occasions on fairness and efficiency in death penalty habeas corpus adjudication, among other topics.

Liebman's principal areas of interest are criminal law, evidence, ethics, habeas corpus, the death penalty, equality and equal protection, public interest advocacy, and education and the law. He received his B.A. from Yale in 1974 and his J.D. from Stanford in 1977.


Randolph N. Stone

StoneRandolph N. Stone has served since 1991 as a clinical professor of law and the director of the Edwin F. Mandel Legal Aid Clinic at the University of Chicago Law School. In the clinic, he created the Criminal and Juvenile Justice Project, providing law and social-work students with the supervised opportunity to defend children accused of criminal and delinquent behavior. In addition to individual legal representation, the project is involved in law reform, public education and policy work related to the criminal and juvenile justice systems. Other current clinic projects include employment discrimination and mental health.

From 1988 to 1991, Stone was the first African-American public defender of Cook County, Illinois, responsible for the management of a $32 million budget and the leadership of more than 500 attorneys defending 200,000 clients a year. He was previously a staff attorney and the deputy director of the Public Defender Service for the District of Columbia and a partner in the Chicago firm of Stone & Clark, focusing on criminal defense matters, including death penalty cases. He has also worked as an attorney with the Criminal Defense Consortium of Cook County and as a Reginald Heber Smith Community Lawyer Fellow with the Neighborhood Legal Services Program in Washington, D.C. Stone is a past chair of the American Bar Association's Criminal Justice Section, an organization of more than 5,000 private and public defense attorneys, prosecutors, judges and law professors. He currently serves on the Illinois Supreme Court's Board of Admissions to the Bar and on the boards of directors for Treatment Alternatives for Safe Communities (TASC), the Sentencing Project, Inc., and the Neighborhood Defender Service of Harlem.

A University of Wisconsin Law School graduate, Stone writes and teaches on issues related to criminal and juvenile justice, clinical legal education, legal ethics, evidence and trial advocacy.


Joseph L. Hoffmann

HoffmannJoseph L. Hoffmann is the Harry Pratter Professor of Law at Indiana University-Bloomington, where he has been teaching since 1986. He is a nationally renowned expert on the death penalty, habeas corpus, and criminal law and procedure. Hoffmann is the co-author of two books about criminal law and procedure and has written more than two dozen articles about death penalty law. He regularly teaches a course at the National Judicial College on handling capital cases for trial judges, and he has lectured on the subject for state and federal judges, prosecutors and lawyers in Indiana, Illinois, New York, Arizona, Texas, Georgia, Alabama, Virginia and Tennessee. He has also served as a consultant in numerous criminal cases argued before the United States Supreme Court, including nine capital cases.

Hoffmann was educated at Harvard College and the University of Washington School of Law. After law school, he clerked for the Honorable Phyllis A. Kravitch of the US Court of Appeals for the Eleventh Circuit in Savannah, Georgia, and for then-Associate Justice William H. Rehnquist of the US Supreme Court. He has been a visiting professor at the University of Virginia and the University of Tokyo in Japan, and he has lectured about American criminal law and procedure at more than 20 universities throughout Europe and Asia.

COPYRIGHT This panel discussion was held in December 2000.

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