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Gov. Martin O’Malley’s push to repeal Maryland’s death penalty is part of a nationwide move away from capital punishment. But death penalty supporters say we still need a way to deter and punish the worst of the worst, like mass murderers whose guilt is unquestioned or prisoners who would harm their guards. Kojo examines the debate over the future of the death penalty.
- Charles Lane Editorial Writer, The Washington Post; Author, "Stay of Execution: Saving The Death Penalty From Itself" (Hoover Inst Press Post Copub, 2010)
- Benjamin Jealous President and CEO, NAACP
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, Washingtonian restaurant critic Todd Kliman joins us for a Food Wednesday conversation on what makes for a great restaurant. But first the District of Columbia abolished the death penalty in 1981. Maryland has five inmates on death row but hasn't executed anyone since 2005. And Virginia sent a convicted killer to the electric chair three weeks ago today.
MR. KOJO NNAMDIOur region represents the spectrum of approaches to capital punishment across the country. But a new push in Maryland to repeal the death penalty may best reflect the national mood. Polls show a majority of Americans saying they support capital punishment but the number of executions actually carried out is falling. In the past five years five states have repealed the death penalty. Now Maryland is poised to become the sixth, but Governor Martin O'Malley promising to put the full weight of his office behind a repeal effort, a new debate is underway.
MR. KOJO NNAMDIDeath penalty opponents say it's time to end an expensive unjust and irreversible punishment but supporters want to preserve it for the very worst crimes. Joining us in studio is Ben Jealous, president and CEO of the NAACP. Ben, good to see you again.
MR. BENJAMIN JEALOUSThank you. It's good to be here.
NNAMDICharles Lane is also with us. He's an editorial writer with the Washington Post and author of "Stay the Execution: Saving the Death Penalty From Itself." Charles Lane, thank you for joining us.
MR. CHARLES LANEThanks, Kojo.
NNAMDII should mention that Charles is here to express views that are his own and not the views of the Washington Post. You can join the conversation by calling us at 800-433-8850. You can send email to firstname.lastname@example.org. Do you think we should keep or get rid of the death penalty? Who should be eligible for capital punishment if you think we should keep it, 800-433-8850? Ben Jealous, in Maryland, Governor O'Malley is making the case that the death penalty should be repealed because it's too expensive and it doesn't work. Why are cost and effectiveness at the heart of this argument?
JEALOUSBecause our justice system at the end of the day is there to make sure that we're safer. In Baltimore right now, you have a two-out-of-three chance of getting away with murder. And you stretch that out over ten years, it's greater than one out of two. My grandfather was on law enforcement in Baltimore for 30 years and he would tell you that if -- law enforcement's really like anything else. If you do something, you can't do something else. If you're focused on something, you can't focus on something else.
JEALOUSIt's all that money that we spend on the death -- I mean, more than 2 million extra dollars every year on the death penalties, we ought to spend it on the homicide unit. And I can tell you somebody whose cousin was killed in Maryland, that when your cousin's killed you praise the day that they found the killer. And you praise the day that they put them in jail for a very long time. But as soon as that happens the next thing that you want to know is that they're finding everybody else's cousin's killer. They're getting all the other killers off the street.
JEALOUSAnd so in our state -- and I live in Maryland. In our state the unfortunate fact is we need every dollar we can possibly find to make sure that we're getting the killers off the streets.
NNAMDIThere was a general perception that life without the possibility of parole ultimately costs more than a death sentence.
JEALOUSIt's not true. It's not true. It's not true because, first of all, you're putting them in the cheap quarters, if you will. You put them in general population, which is the least expensive place to house an inmate. You put them on death row, they're staying by themselves, not with one or multiple other inmates, one. Two, they're staying in a place that's much more secure, requires more guards and all of that. Three, they have great appeals and they also have, you know, additional assistance when they're being prosecuted.
JEALOUSAnd so when you add it all up it -- depending on the state, you know, it varies from a few hundred thousand dollars more to several hundred thousand dollars more. And the reality is that when you ask people -- it's funny, you said, you know, the majority of the people in the country support the death penalty. That's true but then if you say would you support replacing it with life without the possibility of parole, well then, all of a sudden it shifts. And the bigger majority say, yes. let's get rid of it.
JEALOUSIf we can have life without the possibility of parole, the real misconception is that it's either the death penalty or they get out tomorrow. But when you say to people, you know, we'll give them a natural death sentence. They'll die in prison, but, you know, we're not going to execute them, then all of a sudden you get a majority again. So in Maryland, you know, for years, that's been over 60 percent.
NNAMDI800-433-8850. What do you think? You can join the conversation. Charles Lane, one argument you often hear in favor of keeping the death penalty is that we need a punishment for the so called worst of the worst. Who would fit that bill and when do you think such executions would be warranted?
LANEWell, one of the arguments I make in my book is that we need to start thinking much more soberly and seriously about that very question than we have. I believe and I make the case that the worst of the worst are people who commit large scale massacres. And an example would be Timothy McVeigh in Oklahoma City who was executed for that or murders that are accompanied by such terrible torture and rape and physical abuse that they truly shock the conscience.
LANEI think one of the reasons that the death penalty has functioned unsatisfactorily since 1977, the modern era, is that an attempt was made to apply it to many what I would call sort of ordinary murder cases in which it seems disproportionate. So I think the states and the federal government need to do a much better job than they have to date of narrowing the eligibility for the death penalty to very special circumstances.
NNAMDIIn which the most horrific crimes are committed, do you think that it would be a deterrent to the commission of those horrific crimes?
LANEI have seen evidence on both sides of that question and my basic conclusion is, that's one of those great mysteries of social science.
JEALOUSReally? Where is the evidence on the side that said that it actually is a deterrent, because every study -- and I've been working it for 20 years -- every credible peer valuate study says that it's not a deterrent.
JEALOUSI mean, let's just accept that.
LANEIf you'll let me sort of finish my point -- but I'll answer yours, which is that there are several economists at the University of South Carolina, at Emory University in Atlanta who have produced studies with very regression analysis purporting to show that it is a deterrent...
JEALOUSWell, I'll tell you, as a trained criminologist, if an economist could keep us safer, I would hire a whole bunch of them, but they can't. I mean, let's talk to the guys in law enforcement. Let's talk to the criminologists. Let's leave the economists out of trying to make our communities safer. Because if that was the case then, you know, South Central where we got USC and a bunch of economists would be a very safe place.
LANEWell, just to finish the point, what I was building up to saying, Kojo, was that in my book, I think it's the -- this question is never going to be solved and therefore I don't think that deterrents is or has been a valid argument in favor of the death penalty. I wouldn't list deterrents as one of the arguments in favor of it. Instead I think that the strongest arguments in favor of the death penalty are, first of all, that it's -- for certain cases it is the appropriate fitting punishment in terms of retribution, number one. And secondly, it is the only punishment that promises absolute incapacitation of extremely dangerous people.
LANEAnd, you know, I arrived at that conclusion by asking myself the question, is there anything the death penalty does that no other punishment can do with the same certainty? And those are the only purposes that I can see.
NNAMDIMaryland has tight limits on when a death sentence can be imposed, only when someone has committed first degree murder along with an aggravating circumstance like killing a police officer or killing more than one person. And the conviction cannot be based on eyewitness testimony alone. The state needs DNA proof, a videotaped confession or a videotape of a murder. There are some people, Ben Jealous, who feel those safeguards are strong enough to prevent ever executing an innocent person.
JEALOUSWell yeah, if you throw in the fact that right now the state Senate has refused to approve the drug cocktail, it does seem like it's at a stalemate. And yet, we keep on wasting money. I mean, here's the thing, right. The cost doesn't go down if you stop executing people. The cost goes down if you get rid of the death penalty and you shut down death row. And if you talk about vengeance, I don't believe vengeance is a -- well, put it this way. I'm a Christian and just to speak personally, when Jesus said leave vengeance unto the Lord, I took him at his word.
JEALOUSBut when you talk to the inmates, and this happened in California when we were campaigning to abolish it out there, the inmates on death row said, you know what? Please don't put me in general population. You know, here or there, either way, life without possibility of parole, death penalty, I'm going to die. Here it's a date certain, it's a sanitary process. And life until that day is much better than it is in general population. Out there, I'm running the gauntlet every day. There may be people who have (word?) with me...
LANEThis is a strange -- I must say, Kojo, it's a strange argument against the death penalty that says...
JEALOUSNo, no. No, no, no. Well, I'm just saying -- look, I'm just trying to go to where you are.
LANE...it's crueler to the inmate to put him in life without parole.
JEALOUSWell look, it's a strange argument to say let's spend millions of dollars on vengeance when we could spend that on getting killers off the street.
LANEWell, of course, that's not my argument.
JEALOUSThat is your argument. Functionally, that's your argument.
NNAMDIYou say punishment…
JEALOUSThat's the way that it plays out. I mean, we got to stay in reality here. And reality is that if we keep the death penalty, we keep spending millions of dollars on the death penalty, and as my granddad would tell you, that means that you can't spend it on the homicide unit. We need it on the homicide unit. In Baltimore, where my family's from, West Baltimore, my mom grew up in the McCulloh Homes housing projects, you got a two-out-of-three chance of getting away with murder. Your formula is a formula for more murders in Baltimore. That's why we're so dead set against this. We're tired of it.
JEALOUSThe only people who have been executed in Maryland have been executed for killing white folks. So yes, white people have...
NNAMDIWell, we're going to get to the issue of race in a second, Ben Jealous.
JEALOUSWhite people get their vengeance and we get more murders.
NNAMDIWe're going to get to race in a second but I want to ask you, Chuck Lane, what do you see as the distinction between punishment and vengeance?
LANEWell, I use the word retribution. And I believe that -- and I think most Americans actually believe and probably arguably many people in other countries believe that if somebody does something like Timothy McVeigh did, which is in the most coldblooded calculated monstrous manner imaginable...
NNAMDIKilling large numbers of innocent people.
LANE...kills 40 children, I think the appropriate punishment for that is death. I do not, however, dismiss the idea that that is a difficult position to maintain. It's a difficult line to draw. It's a difficult matter for legislators. But I do think it would be more candid honestly if we didn't discuss this in terms of money. Because $2 million for the death penalty would not really make a difference in Baltimore because in Baltimore they have not even sought the death penalty in any case since 1998.
JEALOUSThe $2 million for the homicide unit in Baltimore would be revolutionary at this point.
LANEBut they are not using the death penalty in Baltimore anymore.
NNAMDII got to get back to the...
JEALOUS...the State of Maryland pays for it. I mean, where do you think the money comes from?
NNAMDIGot to get to the phones so let's talk about race, Ben Jealous. What role does race play in the death penalty debate today? According to your organization, the NAACP, 77 percent of those executed in Maryland since 1923 were black. But there are those who say now the situation is changing. The majority of people being executed in the United States are now white.
JEALOUSThe -- as I said, you know, 100 percent of those folks were executed for killing white people. And there is no improvement for our country when we start treating poor white people the way that we treat poor black people. It doesn't increase justice. It just spreads injustice. You know, the majority of -- well, put it this way, 95 percent -- every study it covers around 95 percent of people in death row too poor to afford their own lawyer.
JEALOUSAnd so that's what we have. And race absolutely -- look, Virginia -- if you go back historically, Virginia got it's lynching problem under control because it's opened its courts up to the lynching process. At one point in Virginia it was possible to charge, try, convict and hang somebody on one day. Well, who needs a lynch mob when the courts will do that for you? This is absolutely about vengeance. It's absolutely about retribution. And unfortunately in this country -- and excuse my commentary -- but, you know, unfortunately in this country that tradition is drenched in racism absolutely. But it's also drenched in sort of a discrimination against the poor of all colors.
JEALOUSAnd so simply going from a situation where it's primarily used for people of color who are poor to being almost exclusively used for poor people of all colors, Kojo, you know, that's not what Thurgood Marshall was talking about when he said that we need equal justice.
NNAMDIWell, here now is David in Beltsville, Md. with another argument. David, you're on the hair. Go ahead, please.
DAVIDI don't know, that's my thing. I used to be really against...
NNAMDIYes, David. I can't hear you. You're drifting off.
DAVIDOh, I'm sorry. Hi, this is David.
NNAMDISpeak directly into your phone, David.
DAVIDOkay. I'm from Beltsville, Md. and I was raised a Mennonite and have long been taught against the death penalty and capital punishment. But growing up in this world with quite a lot of mass shootings and other very clear distinctions about who was the perpetrator of a crime, my concern is what happens when -- excuse me, what happens when a person who is put in prison for life without the possibility of parole, what effect does that have for the taxpayers? You know, we pay for that...
JEALOUSIt costs less. You save money, David. That's the bottom line, study after study.
DAVIDOh, I understand. I actually heard you earlier. It's just still three hots and a cot for someone who clearly did something, you know, that took lives, you know. I don't know, that's my concern.
NNAMDIWhy should we support that person regardless of whether it costs more or less, Ben Jealous, for the rest of their "natural lives?"
JEALOUSBecause, you know, sometimes we have monsters, like we had one in Texas. Everybody knew he was a monster. He said he had burned his children to death intentionally -- well, let a fire burning his children, burning his wife. Put him on death row, he stayed there for over a decade. They executed him but, you know, some folks kept saying, you know what? He was so dead set, it was so clear that he didn't do this, maybe we got to dig a little deeper.
JEALOUSAnd then over a decade after Todd Cameron Willingham was killed, the State of Texas admitted, oops, that wasn't arson. He wasn't a monster. It wasn't a horrific killing. It was a horrific accident and the state compounded the accident by treating a grieving father as if he was a monster and sending him to a horrible place and ultimately executing him. And we can never give him his life back.
JEALOUSAnd that's the problem is that, yes, you know, there are times and places like Newtown where the killer killed himself where there's no level frankly of vengeance you could possible imagine that would ever bring those kids back or take back the pain that their families felt and that the entire country feels. But, you know, a good prosecutor can make the argument that pretty much any killer is a monster. I can't say that the guys who killed my cousin, you know, was any Hitler, but man, you know, he was the guy who killed our cousin.
JEALOUSAnd so, you know, we have to, Kojo, just recognize that at the end of the day if three hots and a cot, as he said, for the rest of the man's life until he dies of natural or unnatural causes inside that prison, is going to cost less, is going to save money, is going to allow us to spend that money on catching the killers of other people's families.
NNAMDII want to get back to that money argument in a second.
JEALOUSTwo out of three murders in Baltimore aren't being solved. And our very intelligent colleague is saying that $2 million wouldn't help the situation in Baltimore. I beg to differ.
NNAMDII'm going to get back to money for a second because we got a Tweet from Jay who says "The death penalty is needed. If you kill someone, you deserve death." Chuck Lane, talk about the moral debate. Opponents of capital punishment say it's immoral to execute anyone, while death penalty supporters like Jay seem to be suggesting sometimes it's immoral not to.
LANEJust a quick correction to something Mr. Jealous just said. The State of Texas has not admitted wrongfully executing Mr. Willingham. That has been an allocation...
JEALOUSThey said that it wasn't arson.
LANE...there has been no official statement to that effect. But to answer your question, Kojo, you know, I have deep respect for people who have an absolute moral objection to the death penalty. I think it's like passivism. It's a highly principle position. People...
JEALOUSIt's not like passivism.
LANE...people who are willing to say under any circumstances and regardless of the consequences, I oppose state killing. And I think that's a consistent position. I think it muddies the issue when you start making arguments about how much it costs and so forth because it...
NNAMDIHold that thought right there because that's what Marjorie in Triangle, Va. wants to talk about. Marjorie, your turn.
MARJORIEHi, Kojo. Thanks for taking my call. I just want to say I find it so inappropriate and offensive that this man is talking about the death penalty or any imprisonment in terms of cash and cash value and reducing this to dollars. Justice has a value and you really can't just say, well let's save money by putting someone in life in prison. If we're going to take that path why don't we shorten all the current sentences by 20 percent and start throwing money elsewhere?
JEALOUSBecause there's not a shorter sentence.
MARJORIEThat's just inappropriate and that really, I think, shows a limited moral understanding of what the justice system is about. Thank you, Kojo.
JEALOUSYeah, thank you. I mean, you know, look. I take my moral understanding personally from Jesus Christ. And Jesus Christ was very clear, let he who is without sin cast the first stone. Leave vengeance unto the Lord. The reality here quite simply is that we have a moral obligation to keep our neighbors safe. That's part of -- you know, if you look at the purpose of the U.S. Constitution, the first purpose is justice -- to establish justice.
JEALOUSAnd the reality is that you establish justice by making sure that you have due process, making sure at the end of the day that you can keep people safe, making sure that you can catch the killers and bring them to justice. The death penalty's not a deterrent to crime. What is a deterrent to crime is catching somebody swiftly and convicting them. And in Baltimore where you have in a given year a two-out-of-three chance of getting away with murder, where over multiple years it rises to a one -- it falls to a one-out-of-two chance of getting away with murder. There is no deterrent.
JEALOUSThose are odds that are literally a million times better than some lotteries. And people take them again and again. And the only way that we turn that situation around, that we stop this senseless killing, the kind of slow motion massacres that happen in our inner cities is we get real serious about saying we can provide justice here just as effectively as we do in the suburbs. We can keep people and their children safe just as effectively as they do in the suburbs, but we got to invest in it.
JEALOUSAnd unfortunately I don't create the Maryland State budget, but it is a tough nut. And if we're wasting our money on something that -- so that we can kill somebody rather than just simply have them die behind bars, we need to be clear...
JEALOUS...that in doing that we're creating a situation that makes it possible for murderers to get away with murder.
NNAMDIChuck Lane, what do you feel about the caller's position that it is simply inappropriate to talk about human life or the taking of it in relationship to budgets and finances?
LANEWell, I guess my reaction is this. That I think Mr. Jealous and those who agree with him fundamentally are morally opposed to the death penalty, which I respect. I think as a practical political matter they're often obliged to make other kinds of arguments because there is such strong residual public support for the death penalty. And so they make arguments about the cost. They make arguments about innocence and so forth, all of which have their bite, I would say. But the purpose of my book was to show that many of those issues could be addressed through reforms to the death penalty that would not required abolishing it.
LANEAnd I think in Maryland one of the unfortunate things that happened the last time they approached this was that rather than limit the scope of crime for which people could be eligible for the death penalty, they had tried to deal with it through this heightened evidentiary standard. And I think that was a mistake. But the basic impulse which was in effect mend it, don't end it I think was the right one.
NNAMDIWhere are we trending now nationally, Ben Jealous? It's my understanding that you see the possible Maryland repeal as part of a broader campaign to abolish the death penalty nationwide. How does pushing for repeal in a more left-leaning state like Maryland help that effort?
JEALOUSYeah, you know, the -- forget that a second. You know, my colleague here has suggested that we're pacifists, said that we're simply morally opposed and we just make sort of arguments trying to achieve our kind of moral ends. Look, I'm not ashamed of being a moral person. I'm not ashamed that I, like many people, not all -- not all by a long shot, but many people involved in this fight are guided by their religious convictions. But with that said, you know, I'm not a pacifist. If I found somebody raping my mom, I'd shoot them on the spot.
JEALOUSIf I found -- you know, if I came across Timothy McVeigh I would've shot him on the spot, too. I grew up shooting guns and I have no problem shooting somebody who's trying to harm children or anybody else. But that's what we have police for and that's what their job is. And, you know, the reality is that we are -- we have turned the death penalty around this country because we have given voice to the full range of reasons to oppose it. There are moral reasons, there are very clear practical reasons. We've abolished the death penalty in five states in the last five years.
JEALOUSThe last governor to sign it into law, Governor Malloy of Connecticut is a former New York City prosecutor who was very clear that he as a governor, just like he has a prosecutor had a moral responsibility to keep people safe. And that this is broken and it can't be fixed.
NNAMDIOut of time. You both have to leave. What trends do you see coming down the pike, Chuck Lane?
LANEWell, I think that it's even money, that Maryland will repeal it this time. I think that the state legislators in blue states are moving in that direction. Although in California the voters in a referendum upheld it recently. Whatever happens at the state level it will remain at the federal level, which means that even in non-death penalty states federal government could pursue it as they're doing right now in a case in Puerto Rico. It's just not happening.
NNAMDIAnd that's all the time we have. Charles Lane is an editorial writer for the Washington Post, even though here he was speaking on his own behalf because he is the author of the book "Stay of Execution: Saving the Death Penalty From Itself." Ben Jealous is president and CEO of the NAACP. Always a pleasure. Chuck Lane, thank you for joining us.
NNAMDIWe're going to take a short break. When we come back, it's Food Wednesday. Washingtonian restaurant critic Todd Kliman on what makes for a great restaurant. I'm Kojo Nnamdi.
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