A drug widely used to carryout lethal injections is no longer available in the United States. Some states are scrambling to come up with different approaches, while others have already been moving to abolish capital punishment anyway. We explore the future of the death penalty in the United States, and where local jurisdictions in our region fit into it.

Guests

  • Charles Lane Editorial Writer, The Washington Post; Author, "Stay of Execution: Saving The Death Penalty From Itself" (Hoover Inst Press Post Copub, 2010)
  • Andrew A. Green Opinion Editor, The Baltimore Sun

Transcript

  • 12:06:43

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. In some ways, it looks like the death penalty in the United States could be on death row itself. Legislators in Illinois just banned capital punishment, and movements are underfoot in other states, including Maryland, to do the same. DNA evidence just contributed to the release of a man in Virginia who's spent 27 years behind bars and then got a personal apology from the Commonwealth's attorney general who said Virginia's criminal justice system failed him. And on top of it all, a shortage of a drug used to carry out most lethal injections had sent states scrambling to come up with alternatives.

  • 12:07:41

    MR. KOJO NNAMDIBut the obstacles stacking up against the death penalty may not reflect the opinions most Americans have about whether it's necessary, and the political pressure to abolish capital punishment may not provide the antidote to problems so many Americans have with how it's applied. Joining us in studio is Charles Lane. He is an editorial writer for The Washington Post, where he's a member of the editorial board. He's the author of the book "Stay of Execution: Saving The Death Penalty From Itself." The opinions that Charles Lane will be expressing today are his own as the author of "Stay of Execution." Charles Lane, thank you for joining us.

  • 12:08:20

    MR. CHARLES LANEThank you so much for having me, Kojo.

  • 12:08:22

    NNAMDIOn the surface, there seems to be a lot of evidence stacking up that the death penalty is falling out of favor with Americans. There are fewer people on death row, fewer executions taking place. Legislative movements against the death penalty seemed to be picking up steam, but you argue that this apparent decline of the death penalty does not reflect growing disenchantment with capital punishment. What does it reflect?

  • 12:08:49

    LANEWell, I think the biggest factor that I was able to identify is simply the decline in violent crime and murder itself. Obviously, the death penalty is a penalty now reserved almost exclusively for murder, and fortunately, the murder rate in this country has plunged since the late '90s. We're down to approximately five homicides per 10,000 people in this country, which is down to the level approximately the early '60s.

  • 12:09:21

    LANEAnd while I agree that there has been a significant amount of challenge to the death penalty, that is always been with us, in a way. There have always been those who criticize and question it. And what -- I don't believe that would have been enough by itself to bring about the very significant decline in executions and most importantly, death sentences in various jurisdictions around the country.

  • 12:09:53

    NNAMDILet me ask our -- the members of our audience the same question. What do you think explains the recent drop in executions and in the number of prisoners on death row in the United States? And how do you think that drop relates to the overall drop in violent crime? 800-433-8850 is our number. You can go to our website, kojoshow.org, or send e-mail to kojo@wamu.org or send us a tweet, @kojoshow.

  • 12:10:18

    NNAMDIIt wasn't that long ago that the death penalty did, for a time, vanish in the U.S. In the late '60s, execution chambers effectively shut down. In 1968, there was not a single person put to death. How do the factors that brought about that moment compare to what's taking place today?

  • 12:10:35

    LANEWell, there are some similarities and some important differences. I think what happened in the '60s was the culmination of a sort of general liberal and progressive movement in the country, which we're all familiar with, associated largely with the civil rights movement. And I think that was significantly connected to the decline in the death penalty at that time, and also, it was kind of a lag reaction to the declining crime rate that we experienced in the '40s and '50s.

  • 12:11:05

    LANEImportantly, Kojo, I think when the public feels secure, when they feel that crime is ebbing, they're less open to pro-death penalty appeals. But I believe the death penalty made a comeback in the '70s and '80s as a kind of lagged response to the soaring violent crime the country experienced in the '60s and '70s. And I think what's sort of interesting about the moment we're living in now is we have a kind of a chance to redo that experience or repeating that experience.

  • 12:11:38

    LANEOnce again, crime is declining. Once again, the environment is sort of ripe for revisiting of the death penalty, and I think it's important, as I discuss in my book and perhaps we can discuss this a little bit here, it's important to sort of how we legislatively and judicially deal with that situation.

  • 12:12:01

    NNAMDIIt's something I would like to discuss here, and it's amazing that you talked about the fact that in the '60s when we saw that lull and now that we're seeing a current lull, if you will, is because of the declining rate of violence in the country. You obviously don't watch the television news every night.

  • 12:12:17

    LANEWell, television news, unlike radio, puts its most dramatic stuff out there visually, but the numbers show that the streets of our big cities and our rural communities are substantially safer than they were 20 years ago. Parenthetically, that's a great accomplishment. I wish some people were out there explaining to us how exactly it is we achieved that because it'd be nice to know the formula, but broadly speaking, it's occurred.

  • 12:12:43

    NNAMDICharles Lane who's seeking to put television news out of business is an editorial writer for The Washington Post, where he's a member of the editorial board. He is the author of the book "Stay of Execution: Saving The Death Penalty From Itself." You're very open about the inherent flaws with the death penalty. In fact, you quote conservative columnist George Will who said, quoting here, "Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order." But you push back against one of the most emotionally charged pieces of the anti-death penalty movement that capital punishment is fatally flawed by racial bias. How do you make that case?

  • 12:13:22

    LANEWell, I would distinguish between historical reality and contemporary reality. I think those who charge that the death penalty in the United States is inherently racially biased are correct. They're very closely in touch with the historical reality. If you look at the executions in this country before 1967, the majority of those executed were black men, which was wildly out of proportion and largely explained by the policies of the South, where black men were routinely executed for rape, usually allegedly against white women.

  • 12:13:43

    LANEAfter the reforms of the '60s and '70s, though, the numbers have reversed, and now, the majority of people executed in this country are white, which is closer to a representative balance. I think there's statistical evidence that is -- suggests -- that shows that people who kill whites are more likely to get the death sentence and/or be executed than those who kill blacks.

  • 12:14:22

    LANEBut my argument there is that is accounted for mainly by differences in the demography and the politics of various counties that -- and prosecutorial decisions there than it is by the kind of sort of old-fashioned racism that we knew in the past. That doesn't mean that the system is immune or impervious or unaffected by racism. I would never make that claim, but I do think what it shows is that it is possible to reform the system, and that's probably the most controversial claim I'm making in the book is that you can reform the system and you don't have to abolish it necessarily.

  • 12:15:10

    NNAMDI800-433-8850 is our number. Where do race and fairness fit into your personal opinion about the death penalty? Call us, 800-433-8850. Or go to our website, kojoshow.org. Join the conversation there. Why do you think black-on-black murder results in the death penalty less frequently than white-on-white murder?

  • 12:15:32

    LANEOr indeed black-on-white murder. The best explanations I could come up with were these. First, there's data that show that crimes committed by blacks against other blacks tend to be what they call not aggravated by the other factors that call for the death penalty. So if you commit a murder in the course of a kidnapping or a rape, in most states, that qualifies for the death penalty. But according to a study that I cite in my book, about two-thirds of black-on-black murders do not involve that extra factor. It tends to be in the course of a fight or some kind of family dispute or something like that. That's one possible factor.

  • 12:16:12

    LANEThe second one is that black-on-black crime occurs in jurisdictions, most of the time, where blacks are in the majority of the population, and therefore, public opinion, because blacks are the strongest opponents, by and large, of the death penalty, would weigh against the prosecutors seeking the death penalty. It would be hard for the prosecutor to convince a jury with many African-Americans on it to give the death penalty. Just to cite -- there's statistics that show this. But just to cite one example from our own area, it has been 15 years since Prince George's County, which is a majority black jurisdiction, has imposed a death sentence. I understand the prosecutor there is seeking one right now, but that is...

  • 12:17:04

    NNAMDIYes. She was on this show a few weeks ago, talking about that.

  • 12:17:06

    LANEYeah. But that's a first.

  • 12:17:08

    NNAMDIAnd that prosecutor, of course, is Maryland -- Prince George's County, Maryland state's attorney Angela Alsobrooks. She explained on our politics program this year that she's pursuing the death penalty against a Texas man accused of killing four people, including two young children, inside an apartment in the Lanham area back August. She offered her defense of her opinion that it was an appropriate punishment for certain kinds of crimes, and she feels this is one of them.

  • 12:17:30

    NNAMDIThe other big piece of the case against the death penalty is the case against its fairness, and stories has stacked up about DNA evidence proving wrongful convictions that innocent people have been put to death. Just this month, DNA evidence and other information led to the release of a man who was on death row in Virginia for a quarter of a century, but here too, you say the data against the death penalty are exaggerated. How so?

  • 12:17:59

    LANEYeah. I think there's no question that some people who are innocent of the crime have been sentenced to death and later on released. My -- and I don't think there's -- it's possible. I think anybody who in any way approves the death penalty or favors it, it has to be honest and admit that that is -- you know, you can never get rid of that possibility. You have to own up to that. My argument is twofold. First, that I think the number of cases that can be proven are probably about half as many, and I go through and analyze why, as has been claimed. I don't believe that anyone has actually in the modern era been executed who is innocent. I would certainly argue that in the past, in the pre-modern era -- that is before the '70s -- there were cases like that.

  • 12:18:45

    LANEAnd my -- the second piece of my argument is that whatever your view of that, the best way to narrow that risk down to its minimum is to shrink the universe of cases that are eligible for the death penalty. So, for example, we've just been talking about this case from Prince George's where four people were killed at one time, two of them children. That is the kind of case, a mass killing in a single incident, that I think clearly is over the line as far as qualifying for the death penalty.

  • 12:19:17

    LANEI think in the last 25 or 30 years, however, there have been a number of cases that strike me as not calling -- not really the worst of the worst kind of crime. And I think we're in a process now as a society, where we're -- in the course of rethinking the death penalty, we're trying to narrow it to those crimes that are truly the worst of the worst, and I offer some suggestions about how to narrow that in my book. And I think if we are able to do that, if we're able to sort of shrink the gateway, so to speak, that risk of wrongful execution is automatically reduced.

  • 12:19:57

    NNAMDIWe're going to get to the phones in a second. But you pointed out about 62 cases in the post-reinstatement of the death penalty era that there are 62 cases that represent eight-tenths of 1 percent of the 7,280 death sentences meted out by the U.S. courts from 1977 to 2009. In other words, statistics show that the criminal justice system we have in place got it right more than 99 percent of the time. There are people who would say, so what are you saying, the 1 percent or the 0.8 percent of times that we got it wrong, which represents a few individuals put to death wrongfully, is collateral damage, ancillary damage?

  • 12:20:36

    LANEI've heard that argument, but I wanna be clear about the 1 percent I'm talking about. Those are people who were wrongly sentenced but later released after appeals, and the -- that figure does not include anybody who was executed wrongfully. But I take your point. And, I repeat, I think an honest proponent of the death penalty would have to say, you know, in the course of history, there might be wrongful executions. But I think an honest opponent of the death penalty has to acknowledge that if you were to allow a guilty man to go free or to escape the death penalty, there is the risk that that person could kill an innocent person later on.

  • 12:21:21

    LANEAnd so, I'm -- what I'm trying to do is, I think, the most difficult thing you can do in this debate, which is to strike a compromise. And I think that that is gonna -- you know, they say the middle of the road is the most dangerous part of the highway, but that's where I'm standing.

  • 12:21:39

    NNAMDIAndy Green will be joining us later in the broadcast. He's the editor of The Baltimore Sun's opinion page. First, we've got to take a short break. If you have already called, stay on the line. We will get to your call. If you haven't yet, we still have lines open at 800-433-8850. Where do race and fairness, in your view, fit in to your personal opinion about the death penalty? You can send us a tweet, @kojoshow. Our guest is Charles Lane. His book is called "Stay of Execution: Saving the Death Penalty from Itself." He's a member of the editorial board and an editorial writer for The Washington Post. I'm Kojo Nnamdi.

  • 12:23:57

    NNAMDIWelcome back to our conversation about the death penalty with Charles Lane. He's an editorial writer for The Washington Post and a member of the editorial board. He's the author of the book "Stay of Execution: Saving the Death Penalty from Itself." We'll go directly to the phones, starting with Clay in Silver Spring, Md. Clay, you're on the air. Go ahead, please.

  • 12:24:16

    CLAYHello, gentlemen. We -- in our neighborhood, we had Malvo and Muhammad terrorizing us. And my wife even saw the car that -- she didn't know it at the time because everybody was looking for a white van.

  • 12:24:29

    NNAMDITrue.

  • 12:24:30

    CLAYI just wanted to say that we are split, my wife and I, on the death penalty. I have -- I actually think I have a nice reason for my beliefs as that I -- because I just can't imagine someone staying in prison for so long like a caged animal, but I think that death would be a respite for that. But our feelings toward the killings were strictly from an emotional level, and I never considered their race. I never considered -- except Mohammad had really hard eyes that bothered me. It was just what they did, and I was horrified and I really wanted a piece of them.

  • 12:25:07

    NNAMDIWhat does your wife feel?

  • 12:25:09

    CLAYShe felt that they were both sick, and they are. Now one of them, I believe, did get the death penalty and the other one didn't. The boy didn't, right?

  • 12:25:20

    NNAMDIYes. Malvo did not, but John Allen Muhammad did.

  • 12:25:24

    CLAYRight. Well, she's against capital punishment under any circumstance.

  • 12:25:29

    NNAMDIHere is Charles Lane. Care to respond to that?

  • 12:25:31

    LANEWell, I think this is the kind of case, in my view, that should be eligible for the death penalty. The crime was so tremendous, so cold-blooded. But at the same time, it illustrates the need for some discretion and some distinction on the part of the community. And I think that was successfully exercised in the trial of the teenager, John Malvo -- of Lee -- sorry, Lee Malvo.

  • 12:25:58

    NNAMDILee Malvo.

  • 12:25:59

    LANEHe called himself John at some times. Because there a jury was able to consider the mitigating circumstances that maybe he was under the sway of this older man who had, you know, treated him like a son and had overbearing influence on him. So I felt that was a just outcome in that instance. I think that case also illustrated, though, one of the flaws in the death penalty that I discussed in my book, namely the competition among jurisdictions and the varying standards and practices of various jurisdictions.

  • 12:26:33

    LANEThere was, as you recall, the big dispute over whether he should go to Montgomery County first or Virginia. And, again, one of the things I try to advocate in the book is a series of reforms that would eliminate, to the greatest extent possible, those discrepancies also to promote the fairness of any penalty we retain.

  • 12:26:52

    NNAMDIWhat would you, however, say to people who say, it's fine to have public opinion like Clay feel that this was such a heinous crime that it deserved the death penalty? But there are some decisions you simply cannot leave to public opinion. Usually the people who were in support of civil rights would say, if you had put a referendum in the south about whether or not there should be civil rights, it would have been voted down.

  • 12:27:16

    LANEI think that's a powerful argument, and I think the answer I give in my book is that there should be greater debate in the legislature about the particulars of how the penalty is structured. What we have now is a problem, in my view, where it's been kind of shunted off into the courts, where a lot of decisions are made that aren't necessarily in accord with public opinion but also aren't necessarily particularly well-reasoned. And I think the opposite danger from the one you're describing is the kind of the frustration of public opinion and the backlash and polarization that can build up.

  • 12:27:55

    LANEAs you know, in 1972, the Supreme Court of the United States, in one stroke, in effect, tried to abolish the death penalty in the U.S., which had the opposite effect. It stimulated a pro-death penalty movement against it. I tend to think that the more we can channel this through an open and constructed debate in the legislature, the best chance we have of reaching a balanced outcome. I know a lot of people feel that's not possible, but that's what I hope for.

  • 12:28:24

    NNAMDIThe kind of open and constructive debate you and your wife have, Clay, which is why, presumably, you're still together.

  • 12:28:30

    CLAYExactly.

  • 12:28:31

    NNAMDIThank you very much for your call. Let's dig in to the political pushback against the death penalty. Earlier this year, Illinois Gov. Pat Quinn signed a bill into law, banning the death penalty in his state. In our region, Maryland Gov. Martin O'Malley has tried to put his political capital behind a similar effort to throw out capital punishment. What do you make of the politics at work in states where anti-death penalty movements are underfoot and apparently gaining ground?

  • 12:28:56

    LANEWell, I think there -- first of all, I think it's good. As a general matter, I think it's more appropriate for this to be dealt with as a matter of policy by the elected branches of the government. So if Illinois wants to abolish the death penalty in all cases and pass a law and sign about doing that, that is, I think, the way to handle that particular thing. The reason I think it has gained some oomph politically in these states is some of the factors that you were talking about before, the concerns about actual -- actually innocent people being wrongly sentenced and so forth.

  • 12:29:33

    LANEI wouldn't exaggerate, though, the degree to which this movement is all going in one direction. For example, in Wisconsin, a couple of years ago, there was a state referendum, and the question was put to the voters in a non-binding referendum whether they wanted the death penalty or not. And a majority said they did. Governor --and Wisconsin has never had the death penalty previously. Gov. O'Malley did indeed push for it but was unable to abolish the death penalty in the state legislature, although some new restrictions were put in. I think that, again, what, I guess, I'm more concerned about is the how of this process. And I think it's a healthy thing whatever the result that it goes into the political process.

  • 12:30:20

    NNAMDIGlad you mentioned how it went down in Baltimore because joining us now is -- oh, it went down in Maryland -- is -- because joining us now is Andy Green, who is editor of The Baltimore Sun's opinion page now. Andy Green, thank you very much for joining us.

  • 12:30:34

    MR. ANDREW GREENThanks, Kojo.

  • 12:30:35

    NNAMDII say now because in a previous life, you covered Martin O'Malley's fight to end the death penalty as a reporter in the Maryland...

  • 12:30:41

    GREENThat's right.

  • 12:30:41

    NNAMDI...State House for several years before you moved to your paper's opinion page.

  • 12:30:44

    GREENRight.

  • 12:30:45

    NNAMDIAndy, how did O'Malley try to make his case to the legislature and why, ultimately, has he failed so far?

  • 12:30:52

    GREENMartin O'Malley is a Catholic, and that has very much influenced his thinking on this. You know, the Catholic Church opposes capital punishment. And, you know, he made a number of different arguments. You know, certainly there is the concern about the possibility of an innocent person being put to death. There are the concerns about disparities between different jurisdictions about how the death penalty is meted out.

  • 12:31:16

    GREENYou know, certainly, in Maryland, for example, Baltimore County is responsible for the bulk of people who have been on death row for a variety of reasons. Concerns about racial disparities in terms of who gets the death penalty, you know, the research in Maryland, anyway, has shown that, you know, blacks who killed whites are more likely to get the death penalty than the other way around. And, you know, just in general, a feeling that it's not right for the state to kill, you know, that -- as a moral standard, he believes that it's not right. And so he made this case pretty forcefully a few years back before the legislature.

  • 12:31:54

    GREENAnd as you said earlier, this resulted, not in an abolition of the death penalty in Maryland, but in the enactment of some new restrictions that tried to get at the piece about making sure that anyone we put to death is, in fact, guilty. So the new standards are to say that the death penalty can only be used in cases where there is DNA evidence or videotaped evidence or a videotaped confession, those are the major ones, which people say gives Maryland the most strict death penalty standards in the nation. And so far, no cases have gone forward under those standards.

  • 12:32:28

    GREENIn fact, there was one that was just taken care of this week. There's a case of a young girl on Eastern Shore who was kidnapped and sexually assaulted and murdered. And people thought that this would be a test for the new death penalty rules. But just this week, the criminal in this case pleaded guilty and will be serving life without the possibility of parole. So we still don't know how this is gonna play out in court.

  • 12:32:55

    NNAMDIJessica in Arlington, Va., has a question that maybe relevant to how the Maryland legislature has dealt with this. Jessica, you are now on the air. Go ahead, please.

  • 12:33:03

    JESSICAYes. Actually, I just heard what you said. And that was part of my question. To eliminate any potentially innocent people being put to death, why don't states just have a law that unless it's -- without a shadow of a doubt that that person did the crime, i.e. Jason or whatever his name was -- Loughner in Tucson, that it won't apply?

  • 12:33:28

    NNAMDISo you like the Maryland law that allows prosecutors to seek the death penalty only in cases where there's biological or DNA evidence of guilt -- a videotape of the crime or a taped confession by the killer?

  • 12:33:39

    JESSICAYeah, or they're caught on site. I mean, I think the worst thing in the world is to put somebody to death for something that they didn't do. Wouldn't that eliminate that problem?

  • 12:33:48

    GREENYeah. That's an argument that has particular resonance in Maryland since we have a famous case of a guy named Kirk Bloodsworth, who was on death row in Maryland only to later be exonerated by DNA evidence. I believe he was the first person in the nation in that circumstance, although there have been many others since then. And he has played a big role in the death penalty debate here and has caused people to have real doubts about things. But, you know, like I said, we have not had any cases go through on the new standards, so it's unclear how it's really going to play out.

  • 12:34:18

    NNAMDIJessica, thank you very much for your call. Charles Lane, you actually cite Maryland's death penalty as an example of how states statutes can be carried out in completely different ways by jurisdictions inside of them. You compared Baltimore City and Baltimore County.

  • 12:34:33

    LANERight. Baltimore City is a large jurisdiction with -- reports a lot of homicides and has practically no death penalty de facto, although it is on the books. And as Mr. Green just pointed out next door, Baltimore County has a lot of death penalty cases. In my view, this is...

  • 12:34:51

    GREENAnd relatively few homicides.

  • 12:34:52

    LANEYes. This is a problem. And I believe that what states need to do is centralize their decision making about when and whether to seek the death penalty much the way the federal government does. As you probably know, Kojo, there is an office in the Justice Department that sorts those things out. I'd just like to make one brief comment about the Maryland statute, which requires DNA and so forth.

  • 12:35:17

    LANEAnd I think that is one way to get at the innocence problem, but there's a problem here. If we think about the death penalty more generally, how would a rule like that apply to a criminal like Osama bin Laden, how would that have applied to someone like Adolf Hitler if he had ever been brought to trial? In other words, there may be situations in which the death penalty would certainly be in order based on the nature of the crime.

  • 12:35:47

    NNAMDIMilosevic, same thing?

  • 12:35:48

    LANEYeah. Where would you come up with the DNA and where would you come up with the videotape? That's my concern about that kind of rule. And why, I think, it is better if what you're trying to do is limit the risk of executing of someone who's actually innocent, yet you get at that by narrowing the definition of eligible crime rather than getting into a discussion of what kind of evidence.

  • 12:36:14

    NNAMDIAndy Green, your paper wrote pretty strongly earlier this year in favor of the effort to wipe out the death penalty in Maryland completely.

  • 12:36:21

    GREENYes.

  • 12:36:21

    NNAMDIWhat is your case for doing so?

  • 12:36:23

    GREENWell, we, on a number of different grounds, object to the death penalty. For one thing, it seems like any effort to make a perfect death penalty requires a great deal of complicated contortions on the issues of innocence and due process and all that sort of thing. And furthermore, the process of the death penalty -- and we wrote about this a month or so ago -- tends to not be good for the families of the victims to a great extent, because, you know, any process by which we mete out the ultimate penalty by definition, we have to go through extraordinary steps to make sure that it is just and fairly applied. That process takes a great many years and practice takes many, many twists and turns, you know?

  • 12:37:10

    GREENEven -- and Maryland is greater than average in the amount of time it takes for an execution to occur certainly, but even in a state like Texas, you're looking at a, you know, 10-, 12-year wait between the time of sentencing and execution during which time, you know, families go through all sorts of twists and turns in court and don't really get the kind of closure that you would hope that they would have.

  • 12:37:32

    GREENYou know, this was a factor in the case on the Eastern Shore I just mentioned. You know, the family at the sentencing were saying, you know, we got a great deal of closure here and almost immediately. Whereas if this had gone to a capital case, they would have been in and out of court and confronted with the man who killed their daughter for a decade or more. And, you know, that doesn't seem like a particularly good outcome for anyone. And, you know, just in general, I think we do believe that, you know, the state should not be in the business of killing people. You know, that's just sort of a fundamental approach that we have taken to this issue.

  • 12:38:10

    NNAMDICharles Lane, what do you say about the amount of time that it takes for a death penalty case to ultimately get resolved, as many as 15 and sometimes as long as 20 years?

  • 12:38:19

    LANEWell, a number of things. Right in our area, Virginia, actually, probably has the quickest process. It's less than 10 years on average. I guess I would say a couple of things. First, it is, of the two arguments Mr. Green just gave against the death penalty, I think a stronger one is the purely moral argument because...

  • 12:38:40

    GREENRight. I mean, everything is academic compared to that, of course.

  • 12:38:43

    NNAMDIYeah.

  • 12:38:43

    LANEYes. And of course, if a concern about the death penalty is that it takes too long to happen then, you know, you could say, well, make it faster. And I don't think that's what opponents really want. A concern I articulate in my book is that this waiting period is so variable from one jurisdiction to another. And I think probably both of us would agree that that's a point of concern. And I tried to show evidence as to why that is, and it tends to be because the judges, the courts, are so different from one region of the country to another.

  • 12:39:20

    LANEAnd the judges in Maryland tend to be considerably more liberal than the judges in Virginia. The same goes for the judges in Pennsylvania are more liberal than those in Texas, say. And that seems to me not a good -- the fact that the ideology of judges seems to make a difference in how long it is before a sentence is carried out seems to me not a good situation.

  • 12:39:46

    NNAMDIAnd in reference to the comment you made earlier, Andy Green, here's a comment we got posted by Duffy in Albuquerque at our website. "Of all the arguments for and against the death penalty, there's one I never hear addressed. If it's illegal for an individual to carry out a premeditated killing, how can it be legal for the state to do it?" It seemed to be, at least what I inferred from your early argument, Andy Green.

  • 12:40:12

    GREENYeah, I think that's a question that, you know, people simply just see one way or the other, and I don't know that there's a whole lot of facts that you can muster to argue one side or the other. But...

  • 12:40:25

    NNAMDIAnd that's the moral argument that you referred to earlier, Charles Lane?

  • 12:40:26

    GREENYeah, that's the moral argument. Yes.

  • 12:40:28

    LANEYup.

  • 12:40:29

    NNAMDIOnto Frank in Alexandria, Va. Frank, you're on the air. Go ahead, please.

  • 12:40:35

    FRANKYeah. Thanks for taking the call.

  • 12:40:37

    NNAMDIYou're welcome.

  • 12:40:37

    FRANKI got a question for The Washington Post writer.

  • 12:40:41

    NNAMDIYes.

  • 12:40:41

    FRANKOn your book, how many people on death row did you know?

  • 12:40:46

    LANEYou mean, do I personally know?

  • 12:40:48

    FRANKYes.

  • 12:40:49

    LANENo one.

  • 12:40:50

    FRANKWould you like to?

  • 12:40:52

    NNAMDIWell, pursue that line of questioning with an answer, Frank. What are you getting at here?

  • 12:40:55

    FRANKWell, the thing is I've written to a number of people on death row over the years and I've gotten to know them. And one guy I wrote to in Kentucky, he got off death row because the trial was flawed and he didn't do it, which was another thing. But of the people I've written on death row, the one common denominator I seem to get out of it is abuse.

  • 12:41:21

    NNAMDIBut when you say abuse, what do you mean?

  • 12:41:23

    FRANKI mean, these kids had horrible childhoods. And the one...

  • 12:41:28

    NNAMDIDo any of the people that you have been in contact with on death row admit to having done the crime?

  • 12:41:35

    FRANKYes.

  • 12:41:36

    NNAMDIOkay. Let me get Charles Lane on this.

  • 12:41:38

    LANEWell, I think the caller is probably right. I admit I have not known anyone personally on death row, but in the course of covering this issue as the Post Supreme Court reporter for about seven years, I read the reports of many, many such cases. And I think child abuse or troubled childhood is absolutely a problem or a shared experience, if you wanna say, among people who wind up on death row, and I think it's obviously a terrible tragedy. I think it's probably true that people who are in prison for life for murder would have that in their background as well.

  • 12:42:17

    LANEI think, you know, we have, as a society, to decide whether a person's -- to what degree a person's own suffering would mitigate his responsibility for the suffering he imposes on others when he's an adult. And that's why I referred earlier to the Malvo case, which I think was an appropriate exercise of discretion by a jury where they did take that person's troubled history into account and did not sentence him to death. But I think there have been cases where a person -- we all know people who had very, very abusive childhoods who have gone on to be great people and wonderful people and charitable people and generous people and not kill others.

  • 12:42:56

    NNAMDIFrank, thank you very much for your call. You were gonna say, Andy Green?

  • 12:42:57

    GREENI might interject that that very discretion is one of the things that creates the disparities from one jurisdiction to another, and it would be very difficult to standardize that kind of discretion.

  • 12:43:09

    NNAMDIGot to take a short break. When we come back, we'll continue this conversation on the death penalty with Charles Lane. His book is called "Stay of Execution: Saving The Death Penalty From Itself." He's an editorial writer for The Washington Post and a member of the editorial board. Andy Green joins us from studios at The Baltimore Sun. He is the editor of The Baltimore Sun's opinion page. Yes, we are spewing opinions. I'm Kojo Nnamdi.

  • 12:45:12

    NNAMDIWelcome back to our conversation on the death penalty. We're talking with Andy Green, he is editor of The Baltimore Sun's opinion page, and Charles Lane, who is an editorial writer for The Washington Post. His latest book is called "Stay of Execution: Saving The Death Penalty From Itself." Gentlemen, global events have thrown a lot of states for a loop lately. A European company that makes the drug widely used in lethal injection formulas has decided to stop producing it in the United States. What do you make of how these global factors are affecting American capital punishment policies? First you, Andy Green.

  • 12:45:45

    GREENWell, certainly in Maryland, it's contributed to a long-standing delay we've had in putting together a set of capital punishment protocols. The courts here ruled a few years ago that the protocols by which capital punishment are carried out in Maryland had not been properly adopted. The governor, who as we have noted is against capital punishment, didn't exactly fall over himself to try to resolve that quickly.

  • 12:46:13

    GREENAnd finally, he has put something forward. The legislature, which has a committee that handles these things that happens to be headed by a couple of death penalty opponents, hasn't exactly been in a rush to deal with it either. And now, this news about the drug throws things into even further delays. So, you know, some states (unintelligible) ...

  • 12:46:31

    NNAMDIFurther delays, yes. But does that effectively -- Andy, does that effectively give Gov. O'Malley cover to continue the death penalty moratorium indefinitely?

  • 12:46:41

    GREENWell, that's the way it's played out so far. You know, he has eventually put forward regulations, but I don't know, you know, how long it's going to be dragged out here. It could be a very long time.

  • 12:46:53

    NNAMDICharles Lane, care to comment on that at all?

  • 12:46:56

    LANEWell, I think broadly speaking, the pressure from Europe, which is now the European Union has -- if you might call it a death penalty-free zone -- has been substantial and is a really important factor generally in our debate here. It's given a lot of ammunition to the opponents of the death penalty in the U.S. I'm a little -- I find it strange anyway that Gov. O'Malley has chosen this very indirect method of fighting the death penalty through the regulatory process, if you like, when as...

  • 12:47:31

    GREENCertainly, when he has the power to simply commute the sentences if he so desires.

  • 12:47:34

    LANEExactly, as I've written before, and I find that that is evidence that there is some politics playing into this as well. There are five people on death row. Gov. O'Malley with essentially the stroke of a pen could relieve them from the threat of the death penalty, and he hasn't done that.

  • 12:47:51

    NNAMDIOnto the telephones again. Here now is Ricardo in Falls Church, Va. Ricardo, you are on the air. Go ahead, please.

  • 12:47:59

    RICARDOHi. I'm a member of Murder Victims' Families for Reconciliation and those of us that had somebody murdered in our family but are against the death penalty. And, I mean, a lot of it is moral, but it's also logical reasoning that we use. So I heard Mr. Lane saying that the death penalty will remove somebody or safeguard society or keep them safe. And we take the position that it's not really the death penalty that does that, it's keeping somebody in prison. So when they're arrested, that's when we feel safer. It's not when they're dead. So it's more blood kind of spilt on our names.

  • 12:48:48

    RICARDOBecause of us, even though sometimes in cases where we're against the death penalty, they still carry out the death penalty. So it's kind of like a cover that they're doing it for the victims. So I just want to get your comment about that.

  • 12:49:03

    NNAMDII think in Charles Lane's case, he was talking about people who may have been released into the community but who are, in fact, guilty of committing a murder.

  • 12:49:13

    LANERight. But I think this caller quite legitimately gets at an issue that I also tried to get at in my book, which is what would be a fair justification for the death penalty, and why? And my argument briefly is that there are two things, two objectives that are both potentially in society's interest and that only the death penalty can accomplish. And one of them is a kind of retribution that fits the crime, and the other is the complete elimination of the perpetrator. And I think it might surprise the caller to know that I sort of agree with him in the following sense.

  • 12:49:49

    LANEI think there is too much emphasis, both pro and anti, on the feelings of the family of the victim. Maybe it sounds a little harsh, but I think that the prosecutors should be acting on behalf of society in general. Their job is not to carry out sort of family vengeance for a particular group of victims. And by the same token, I think that the family's feelings about, you know -- that life imprisonment would be a better punishment probably shouldn't be decisive either. I think that the role of the prosecutor is to act in the interest of society as a whole and not a particular family.

  • 12:50:27

    NNAMDIThank you for your call, Ricardo. Speaking of the role of the prosecutor, Andy Green, your paper wrote that even though you find that the prosecutor in Baltimore County is one of the more thoughtful supporters of the death penalty in Maryland, his approach to the issue is nevertheless flawed. Why?

  • 12:50:45

    GREENWell, Baltimore County has -- under his predecessor, who is responsible for a lot of the death penalty cases in Maryland, their stance was that they would pursue the death penalty in every case for which it is eligible. So they're, you know, essentially taking their discretion out of the equation. The current prosecutor in Baltimore County has not gone that far. He has certainly been more thoughtful about it. You know, he discusses the matter with the victims and, you know, at least warns them of what they're getting into and has been more sensitive to thinking through the particulars of a given case. So I don't wanna be too hard on him. But, you know, again, we do fundamentally disagree with him on the basic question.

  • 12:51:35

    NNAMDIHere is Sue in Columbia, Md. Sue, you're on the air. Go ahead, please.

  • 12:51:40

    SUEHi. I wanted to comment about the morality of the capital punishment. Well, I am a mother of four, raising four children. I am an early childhood educator. And when I see children being sexually molested, sometimes I feel that capital punishment is appropriate for the offender. And the other part of me worries about the relatives of that sex offender. And when the capital punishment is carried out and -- the government is using the license to kill. Now the license is -- there's no right reason to kill. So the state, the State of Maryland, is trying to make the policy to kill that individual, who could be reformed in the future. I think that's too harsh.

  • 12:52:33

    NNAMDIDo you think there's any crime at all that warrants the imposition of the death penalty?

  • 12:52:37

    SUENo. No, I don't think so. But sometimes when I see the young children being molested -- I mean, I am a teacher -- my heart just aches and aches. They carry out their pain into their adulthood. And then like Mr. Lane was saying, some of the children who was -- had a troubled family history and like affected by the sexual -- molested -- offender. For example, Oprah turned out fine. But a lot of cases, a lot of children, they don't turn out fine. They become the -- they became the offenders by themselves. And it is very hard. I mean, it is very hard for a state to install that policy. Okay...

  • 12:53:23

    NNAMDIOkay. I do understand what you're saying, Sue, but we're running out of time. So I'd like Charles Lane to talk about this because we talked about race as a factor in the death penalty. But here is Sue bringing up issues of gender and age.

  • 12:53:36

    LANEYes. And, you know, it is -- there's -- at some intuitive level, the kind of feeling she's expressing is very powerful. And that is why, historically, rape --or the death penalty was imposed for rape, and particularly the rape of children. But the Supreme Court has ruled that that is unconstitutional. We now have a rule in this country that only homicides -- and perhaps treason and things like that -- could be eligible for the death penalty. But she is voicing a very powerful moral intuition, which she herself is struggling and apparently has overcome. But I think we, whether we're for or against the death penalty, we have to respect that very powerful moral intuition.

  • 12:54:23

    NNAMDIThank you very much for your call, Sue. Andy Green, the editorial page of The Baltimore Sun seems to argue that we not only have to respect that moral intuition, that it should, in effect, carry the day.

  • 12:54:36

    GREENYes. I think that's true. You know, the -- we can come up with complicated systems to try to carry out something that is, you know, I would say, fundamentally a bit unnatural, which is for the state to actually kill someone, which is the very conduct that we consider most reprehensible among our citizens. But, really, the much simpler solution is, you know, life without the possibility of parole. And I think that that serves an appropriate punishment. It serves our purposes of preventing people from having the opportunity to kill again. And it avoids all of the logistical and moral questions of the death penalty.

  • 12:55:20

    NNAMDIWell, Charles Lane, it's my understanding that you've spent a lot of time studying the capital punishment process and system in Japan.

  • 12:55:27

    LANEYes.

  • 12:55:27

    NNAMDIWhat do you think we can learn from the system that's in place there?

  • 12:55:30

    LANEWell, some things we don't wanna do and some things we might consider adopting. And I think the main point that's worth considering adopting is the, as I said before, the centralization of the decision-making about whether or not to seek the death penalty, which is completely centralized there, number one. And number two, the definition of the eligible crimes, which has been narrowed essentially to multiple and very aggravated homicides. And I would just like to add on this moral point.

  • 12:56:01

    LANEYou know, it isn't really true that the state is never allowed to kill. The state, in effect, is allowed to wage war. In fact, we wanted to wage war when it's in the national defense. In some ways, I see an analogy to that when we discuss the death penalty. I think there are some people who are pacifists and think it's never right to wage war. And there are some people who are abolitionists on the death penalty and think that's never correct. What I'm trying to do -- and I admit it's a very tall order -- is to say, okay, sometimes, just as we have to wage war in defense, we may need, in a few limited instances, to use the death penalty in society's defense, and then try to come up with the right rules of engagement, so to speak.

  • 12:56:43

    NNAMDIWell, if in the United States there is fixes -- or there are fixes that are necessary to keep in place death penalty that fits inappropriately with our criminal justice system -- and you've just mentioned some of the aspects of that you'd like to see -- who, therefore, should be responsible for reforming it? Do you prefer leaving this to the courts to solve, or for lawmakers to take the lead?

  • 12:57:04

    LANEI think we need to start getting lawmakers back into the business of addressing these tough questions. I think they've been able to kind of shunt it off on the courts for too long. And we've reached a point where I think the courts did a lot of very important work that was effective and that reformed the system. I think now the courts are mainly making it more complex without any clear evidence that those are reforms. And therefore, in some ways, though, I'm critical of what they actually did. I'm glad that the Maryland legislature got into this issue, rolled up their sleeves and started to take some responsibility for it because I think that's their job, and I think that's the way it should work in a democracy.

  • 12:57:46

    NNAMDIAnd I'm afraid that's all the time we have. Charles Lane is an editorial writer for The Washington Post, where he's a member of the editorial board. He's the author of the book "Stay of Execution: Saving The Death Penalty From Itself." We do have to remind you, of course, that the opinions that Charles Lane expressed on this broadcast are his own, not the opinions of The Washington Post. Andy Green is the editor of The Baltimore Sun's opinion page. Andy, great always to talk with you.

  • 12:58:10

    GREENAlways a pleasure, Kojo.

  • 12:58:11

    NNAMDICharles Lane, thank you so much for joining us.

  • 12:58:12

    LANEThank you, Kojo.

  • 12:58:13

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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