Transcripts For CSPAN3 Landmark Cases Supreme Court Landmark Case Gregg V. Georgia 20240712

Affirmative action under the constitution. And then the legacy of those decisions. Youre watching American History tv on cspan three. The u. S. Supreme court today ruled that the Death Penalty does not necessarily represent cruel and unusual punishment, and that i can be a deterrent to crime. By seven to two, the judges upheld the Death Penalty in florida georgia and texas, other states may be affected in this similar way. But about five to four, the court struck down Capital Punishment laws and and louisiana. That ruling could prevent still other states from invoking their own Death Penalty laws. All persons having business before the honorable, the Supreme Court of the United States are admonished to drawn their and give their attention. Landmark cases, spends special history series, produced in partnership with the National Constitution center. Exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Mr. Chief justice, may it please the court good evening welcome to cspans landmark cases. Tonight, the Death Penalty in the case of gregg v. Georgia a 1976. As you heard the news report, it was a complicated case with the complicated outcome. The laws in the three states, georgia, florida and texas were upheld, while the laws in louisiana and North Carolina had to be rewritten. It did not settle the Death Penalty debate, which has been going on ever since. Tonight, well talk with to people who spend a lot of time thinking about this part of american Justice System and will help us understand these cases, what the mood in American Society was like, and the legacy of the decisions, lets introduce carol steiker, a professor at harvard law school, she clark wants for Justice Thurgood marshall in the 86 to 87 term. And shes the coauthor, with her brother, of a book called courting death the Supreme Court and Capital Punishment. Kent Kent Scheidegger is faced in sacramento, an organization that advocates in favor of the Death Penalty and for more swift acting criminal Justice System. They found more than 100 trade briefs and Supreme Court cases. Welcome to both of you. The Supreme Court has considered many cases on the Death Penalty. What is it about gregg v. Georgia that makes this a landmark case. Well start with you. The court squarely confirmed the question of whether the Death Penalty per se its constitutional or not. Most other cases have involve particular procedures and statutes, but did not grapple with the question of the constitutionality of it. What else do we know about it . For years previously, the Supreme Court has struck down Capital Punishment as it was practice in the United States, so it abolished Capital Punishment and half the court not backtracked and reinstated the american Death Penalty, the United States wouldve abolished the Death Penalty roughly on the timeframe of our western democratic peers. Today, the United States is the only country in the world that still has the Death Penalty they only western democracy, and we would not be in that situation had these decision overturned. In the series, were spending time learning about the constitution and there are three amendments that really have something to do with this case. First, the fifth amendment. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a present man or indictment of a grand jury, nor be deprived of life, liberty, or property, without the process of law. Also the 14th amendment. No state shall make or enforce any law which abridge the privileges are minute ease of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without the process of law, no denying to any person within its jurisdiction the equal protection of laws. Finally, the eighth amendment, which has excessive bail so not be required nor excessive fines, nor cruel and unusual punishment inflicted. In gregg v. Georgia, were all this constitutional amendments under consideration . Are only one of them. Because the court was reconsidering their decision, mostly the eighth amendment was at stake. That was the basis of the ruling in farm and versus georgia, which is set aside a 1976, but the eighth amendment only applies to the states as opposed to the federal judgment, so both the eighth and the 14th amendment were in play in 1976. The due process and equal protection clause arguments had been considered before by the Supreme Court in 1971 and the court had been upheld. We are going to start by listening to two justices, justices briar and Justice Scalia talking about the decision of cruel and unusual in the eighth amendment. Well hear what they have to say. Here notching, if cases like that arose, would you find them constitutional . I find them constitutional and stupid. A lot of stuff is constitutional and stupid, that cannot be the test. The word in the constitution is cruel, and the word is unusual. Its possible that overtime people have a different idea of what is cruel. That does not mean that that thing is not cruel because somebody in the 18 century thought it wasnt. It may be cool what . The word hasnt changed its meaning. He talks as though its a one way street, you know. We get more gentle over eight, not more cruel. But its not a oneway street. If you think cruel is whatever you think is cruel, not what the founders thought was cruel. What if you begin to think that things arent cruel that they thought were cruel. It thought thumb screws were bad. Nowadays, what the heck. We have a more violent society, not so bad. Is that all that the eighth amendment means . To thine own self be true . Dont do anything that you think is true. We dont want to buy new to our notions of cruel, that cant be what it meant. It will obviously meant to set a standard and once you agreed to that, it sets a standard in both directions. Thats a great piece of tape because you really see the arguments on the court about the meaning of the constitution. When you watch this, for both of you, what is your reaction . Well, i think the real question, and its an ongoing debate in law is how much we should interpret the constitution the way the framers would have interpreted it in 1789 or the constitution ratification . I think robin analogy of this one. Suppose her great grandmother left a bequest in 1930 for her children and childrens children to use the money to eat healthy food. Well, back in 1930 or so, healthy food was red meat, full fat dairy and acts. Suppose today youre trying to be faithful to that request to use it for healthy food. It might not be considered to be steak and eggs and milk. So the idea is that you are being faithful to the meaning of the constitution, or a will, if you interpret it over time as ideas change. Do we have any sense from writings of the founders, the drafters of the constitution, on what they put into this amendment. What was their thought of cruel and unusual meant . Justice scalias view and that tape is a bit of an outlier. That was not the argument and the cases. But as far as what the founders meant, i think they were using a term that was understood in english law. Unusual meant outside the normal allegiances of the law. I think unusuals can change over time, the practices were usual at the time of the founding that are unusual today, having been universally rejected. But thats a different thing from saying that the court attended side on its own that something is cruel and unusual, even though it is the law in most states. The Death Penalty has been part of our society, the first recorded execution was in 16 oh eight indian town, virginia. Execution by firing squad for spying on behalf of the spanish and trading with native tribes. To learn more about the history of the Death Penalty, we visited the Alcatraz East Museum in tennessee, formerly the crime and Punishment Museum in d. C. And learn more details about capital but its been over the centuries. Alcatraz east crime museum is located in tennessee, we used to be in washington, d. C. Capital punishment has always been working through an effort to try and make execution more humane. And our Capital Punishment gallery we have methods that were used in europe, such as burning at the steak and beheadings, drawn and quarter, all those glory things. Coming to the United States, first it was hanging. Each successive message was trying to find ways to make execution more humane and more painless. The electric chair from the Tennessee State prison is called old smoky. It was shoes from 1916 to 1960 and 125 executions. It was made from wood from the former gallows and made by the prisoners. The electric chair is often said as a joke, but it was true that it was developed by a dentist, modifying a dentist chair because he felt that using the modern invention of electrocution would be more humane than hanging. The first execution with the electric chair was in 1890 at all burn present in new york. A man named william killer was executed for murdering his wife with a hatchet, but it did not go as planned or as fast as they were in anticipating. George westinghouse said that they would have done better had they just used an ax. This gas chamber is a reproduction based on the chambers and wyoming and new mexico. If you look up photos of those, it looks very similar because its based on the originals. The gas chamber was only used relatively briefly. It was first used in nevada and 1924, but they first tried using it by filling a cell of a prisoner with gas, theyre trying to kill him while he slept. But because it wasnt airtight, the air escaped and was not safe for the Prison Guards and other employees. So they worked a lot at refining that method, but it never really caught on, partly because of the danger that it opposed to witnesses and guards. Guards really werent comfortable with it, and it took a lot longer than they originally anticipated. It never fully replace the electric chair, and electric chairs were used commonly as an alternative. Later on our program, when we turn to alcatraz east to learn about later methods of execution, before we talk about the Supreme Court cases prior to gregg v. Georgia, i tell you about involving you in the discussion. We want your participation with questions or comments about the Death Penalty. If you live in the eastern or central time zones, reaches at 2027488900. If you live in the mountain or pacific time zones, 2027488901. Or send us a tweet. You can reach us at cspan and use the hashtag landmark cases, and what makes your twitter comments in for our guest throughout the program. I have three cases of notes, Capital Punishment cases. Powell versus alabama, my got a versus california and the furman case in 1972. What do we know about those earlier cases . Well powell did require an appointed lawyer for defendants facing Capital Punishment, but reserved if they would be required a non capital cases, and decided that later. The mcgautha case address the question of whether unguarded discretion injuries, whether they have the authority to decide Capital Punishment or not once convicted of murder without any guidance for instruction, whether that violated the Legal Protection process that were decided the year before furman, and 63 in favor of upholding the systems. And then furman came along the next year and accepted by a five to four margin, very largely as the same margin rejected under mcgautha the. What was happening to Public Opinion in that short period of time that the court was taking up these cases and actually changing its position . Public opinion in the United States and mirrored Public Opinion in the world around the Death Penalty in the 1960s. The Death Penalty came under increasing attack, and many of our peer countries, for example, england abolished the Death Penalty in the 1960s. That was the beginning of the Strong Movement in europe and elsewhere to abolish the Death Penalty. So the Gallup Polling Organization showed that for the first time in history, more people opposed the Death Penalty than supported it in 1966. I think many people thought we were coming to the end of the use of Capital Punishment in the United States. The gallup poll graph actually kind of mirrors the crime rates, if you plot the crime rates, the homicide rates on the same graph as the Death Penalty, the rise and fall together. We try to teach people about how the court operates. Some of the justice trying to follow the news and that sort of thing, but especially in this case, do they really take the temperature of the American Public as it is lighting the case, or decide to consider them . Well, im sure they do. In particular when they consider cases under the eighth amendment, which deals with cruel and unusual punishment. But the court had set for decades that the test for whether something was cruel and unusual was whether it violated the evolving standards of decency that mark the progress of a maturing society. So it was under the eighth amendment that the court took the temperature of prevailing attitudes. What was your opinion on this . The court does take into consideration and gregg opinion, the legislative reaction to furman and the fact that so many states had reinstated the Death Penalty laws after furman. That was an important gauge for the court of what is considered acceptable, and what is unusual in our society today. How many states did react . 35 states, plus the congress. What should we interpret from that . There was absolutely a backlash to furman and the 1970s. And i think it was the timing of that decision, that they had come to the decision at a time of greatly rising crime and fear of terrorism. I think that the court decided made the same decision at a different period of time, we may not have seen the same kind of backlash. We are going to learn more about the five cases that were joined together in these rulings. Before we do that, lets hear from some callers as we get underway here. Greg is in orlando and on the air. Welcome. Hi, great program. Just want to know is a persons legal status does that have any bearing on whether they can be executed in our country . Thank you. Well, legal status . I mean you, have to be convicted of murder, and whether you have a prior conviction in some states as one of the qualifying circumstances. If thats what it means by legal status, then, yes. Leon in brunswick, georgia. Your question . Yes maam. I just wanted to say that id like to know why we keep feeding these criminals and letting them live, and why we put them in there with other criminals that are not killers and have to put up with that. Thats an argument you often hear that, it costs a lot to incarcerate people for life and less expensive to do swift justice and made out their punishment. What do the numbers really tell us about the cost of Death Penalty appeals, versus the cost of incarceration . Its absolutely the opposite. I suppose there was a time in history when it was less expensive to have the Death Penalty that do have life imprisonment, what many states now have studied their own capital Justice Systems and its clear that its far more expensive to have Capital Punishment than it is to have life imprisonment, even when you take into account the cost of incarcerating someone for life. Much more expensive. I think that is one of the reasons weve seen such an declining use of the Death Penalty in recent times. That is just extraordinarily expensive to do. Are those expenses legal challenges . Some are legal challenges. Most of it has to do with the required process that grew out of the gregg decision and the decisions that followed, where the Supreme Court said there are certain procedures mandated by the constitution prior to the 1970s and the decisions in furman and gregg, there was no regulation of the Capitol Justice process. Since 1966 and gregg, the Supreme Court has taken an ongoing role in making a lot of constitutional rules to structure the capital justice process. Mr. Kent scheidegger, what is your organizations view on this . Many of the studies of the costs are flawed, and a lot of that, figures are disputed. As far as the cost for you and the length of time it takes to review, many of the procedures we have are not mandated by the constitution. Many take too long. The failure of courts to comply with the law and congress has already passed to expedite those procedures is a big part of the problem, so the whole cost argument is very complex. I should just say that the studies that have been done have been done by the states themselves, im not talking about studies by partisan groups. These are states trying to understand how much money they are spending, and its the states that he said have revealed the enormous cost of the Capitol Justice process. We have one viewer that wants to clarify the initial question, believing legal status, he meant legal citizenship, versus illegal aliens. Is there any difference in the law . Now. If youve been convicted and sentenced, theres a matter controversial . No. Greg is in largo, florida. Go ahead. Yes, add a question about the constitutionality of the military Death Penalty, and terrorists facing the Death Penalty. An issue theyve come up with regard to the military Death Penalty as to whether the president could specify some of the requirements for the Death Penalty. That was a case called loving versus the United States. The decision was that the president s orders in that regard were valid. Do you know anymore about either of those two circumstances . The military Death Penalty or circumstances . The military Death Penalty is subject to the same constitutional rolls up that penalty in criminal court. Someone convicted a military court system has the same right of appeals, another words . Yes. Lets go into the five cases that were involved, and cant you will take the lead on three, and carroll, two for us. The georgia case, which gave the entire decision involved jointly on greg. What happened . He was hitchhiking, and two man picked him up. One of the men happen to have a large watt of cash on him, which he managed to lead gregg see. They take a pit stop, and go to a bank, the two men, the driver and his friend. As they come back up, gregg shoots and kills them both and takes the car and the wad of money. Another case is the profit case from florida. The profit case was a burglary in which profit stabbed the victim through the hard with a butcher knife. Not to many details on that case. The third case jerry lane jurassic. Hed express it is ire to have sex with young girls, he kidnapped a young girl, driving her away from a public park, tucker near the a river and strangled her and through her body in the river. Two cases to tell us about. One of the louisiana case with santas lance robertson, and North Carolina with james tyrone watson. Roberts was convicted of murdering a gas station attendant name richard low in like charles, louisiana and 1974. James would send in North Carolina was convicted of playing a part in a murder. His part was to drive the getaway car. His codefendant arm robbed a store and killed a sore owner, surely butler, in done, North Carolina. Under the law of North Carolina at the time, if someone died during the course of a felony, that was socalled felony murder. And everyone involved in the crime, whether or not they were the actual killers were considered murderers. And both of those states, louisiana and North Carolina under the new laws that were passed after the furman in 1972, the Death Penalty was mandatory. This was never given to the jury to decide whether there would be a Death Penalty delivered in those cases. It was mandated by statute if you are convicted of a capital crime. You would automatically be sentenced to death. What is the legal difference in the two states, louisiana and North Carolina versus the three, which ended up being a split decision . Its a mandatory sentence upon conviction for a crime. The death sentence ultimately falls, versus that guided discretion approach where the jury is allowed to decide, but given guidance on how to approach it. That sets the stage for a split decision on this. How often does the court take cases and block like this . Taking five together . Thats quite unusual. I dont know of any other case where theyve taken that many in one block. Do they know why they did it . Probably to get a spectrum, because there was a variety of legislative reactions to the furman decision. The furman case left a law so confuse that nobody knew what was required or permitted, so there was a lot of different laws and in a lot of different states. They want to take a spectrum to sort it all out. We will move on to the court, and will make some some more calls if we can get them lined up for me. We will move on to the court in 1976. The eisenhower appointees include William Brennan and powder stewart. The candy appointee is bryan white. Johnson appointee, thurgood marshall. Nixon appointee, the chief Justice Harry blackmon, lewis powell, and william rehnquist, would become chief himself. The ford appointee, and president what it was an office and 76 was john paul stevens. The oral arguments were heard over two days, march 30th and 31st. And they have more than four hours of argument. Is that surprising considering the number of cases . You have a prosecution and defense attorney for each case, and then to front of the court arguments, one for the United States, and one by the California Attorney general. A question for both of you. What was the overall attitude of the court toward criminal justice cases . We learned about the warren accord, out of the burger court established a world view during its time . People talk about the kind of revolution and criminal procedure rot by the burger court. The warren court had been known for establishing many procedural protections and criminal cases, such as the famous miranda warnings, the application of the exclusionary rule to the states for unconstitutionally seized evidence, the extension of the right to a jury trial in the states, which had not been mandated until 1968. The requirement of a right to counsel and all serious criminal cases for defendants, which had also not been extended to all of the states. That was the warren quartz criminal decision. The burger court and try to establish many more limitations on the right created by the warren court. In addition to the Death Penalty, what are the criminal justice cases the court to gone that established his reputation . Im loving that reputation i think thats overstated. I dont care counter five a revolution, i wont push much further. There were some cutbacks, but it was a fairly mild correction to the huge change that happened during the warren court era. We did see the growth during this variant of the beginning of the good faith exception to the exclusionary rule, for example. But the exclusionary rule by itself still stands. We saw some expectations to the miranda roll, but the main miranda role was still there. There are some movements back in the other direction, but not a huge one. Not a revolutionary change. Lets return to your phone calls. Next up, mark in perry, ohio. Hi. My question to the panel here is, should the Supreme Court even be reviewing the Death Penalty as unconstitutional . Under federalism, shouldnt the court have of that to the states as to crime and punishment outside the realm of the federal government . Well, the 14th amendment did make a change in that regard and did provide some degree of federal oversight on state criminal process that had not been there before. But i think the constitutionality of the Death Penalty as such was fairly clear. Chief Justice Warren himself had said more than once in the previous decade. Well, the constitution does address punishment. It says there can be no cruel and unusual punishments. But it doesnt give us much guidance as to what those are, so that it believes it in the hands of the justices to interpret those words, which, admittedly, are what they call the majestic generalities of the constitution. The due process clause, the unreasonable search and seizure clause. None of the things ourselves defining, so the court has to do its best to give the meeting. Next up is bowl in madison, alabama. We are on the air, welcome. I, are you there . All right, well leave you. Lets go on to gerry in portland, oregon. Hi, jerry. Hi. I come at a Death Penalty from a in usual angle and that my father was murdered by his second wife. Breathless one morning, she shot him in the base of the school while he was eating breakfast. She was convicted of murder and sentenced to six years probation. This was primarily because of his abusive nature. When this accord, i began studying the Death Penalty and having had the advantage of a cousin with a federal judge, i got a lot of insight into this question. And it has become apparent to me that the reasonable person would take anybody who has committed such a crime, find out what theyre creating factors were. That is to say, what environment did they mature in that would enable them to commit such a crime and look for ways to avoid recreating in that environment for future for the future. Thanks, jerry for telling us your life story. How old were you when this happened in your family . 38. 38. Thanks for your call. What do you have to say to them . They want to change circumstances for people in the future, thats a worthy thing to do. But the crime has already happened, and the question of punishment is a different one from prevention in the future. Well, i do think that studying death row is a window into what poverty and deprivation breeds and our society. On death row, overwhelmingly, the defendant to end up there are from the poorest of the poor families. Often with cognitive impairments, untreated Mental Health conditions. The subject of often horrific childhood neglect and abuse. So if we wanted to prevent their crimes, i think the caller has a good point that we might do well to address those conditions. Diocesan iowa. I know youve been with us throughout the series. Nice to hear from you tonight. Thank you. My question is, do you think the court risks losing its credibility when it reverses itself and sent a short period of time . I can think of one other example when it reversed itself in the course of a threeyear period. That was in the forties. Do you think the court risks losing credibility if it reverses itself in a three or four your time span. I think thats an issue. Cant has a point. It is hard to know what i furman meant, and the dissenters invited states to do precisely what they did, pointing out that the Supreme Court seemed most concerned about the absence of direction to juries in applying the Death Penalty. So the court in 1976 did not really have to overturn any particular golding that garnered five votes in 1972 because nothing garnered five votes in 1972. Yes, i do think now we look back and say the court abolished the Death Penalty and 1972, and reinstated it, but i think at the time looked more complicated than that. It has been a continuing problem sense the gregg decision, because the court has contradicted itself. Its contradicted the profit cases from this group, and its considered itself many more times since then. Its hard for states to build a lasting and just system of Capital Punishment when the Supreme Court cannot agree with itself from one year to the next, but the constitution requires and whatever beds. Thats been the biggest problem of Capital Punishment. Heres something we are green. The court has been all over the map with Capital Punishment and changing its mind right and left about what is required, what is forbidden, but its permitted. Do you have a sense of why it struggled so much with it . Yes, i think from the very getgo there were three different wings on the court. There were justices brennan and marshall who in furman where the only two that sent that the Death Penalty in all cases was cruel and unusual punishment. It violated human dignity, they said. And then you had chief Justice Burger and some of the other justices and the dissent in furman who said we have no business saying anything to the states, getting into this regulatory position because they should just be free to have the Death Penalty or not as they see fit. And then there was a center of the court, and that gives us to gregg, the three justices who joined together to form the plurality opinion in gregg that basically try to mediate between these two warring poles and take a mended, dont ended approach. But to do anything, they either needed the abolitionist a lot more than he did the leave it all alone vote, so they had to keep swinging back and forth between these two poles in order to do anything with the Death Penalty, and that has led to a set of cases that its very hard to make sense of. James is in iowa. Thank you. My question is, with the growth of lethal injection, im aware there have been controversy about the compounds used. Is a political or legal or federal issue . Ive seen many animals put down one substances that any that has that are very quick acting and appear to be totally painless. Why did states go through these contortions with exotic compounds . Why dont they just change over to am not a doctor or that, what will that do . They have used that. But there is a problem. The pharmaceutical industry has become very international, and some of these compounds are imported. The companies in europe have been under pressure from the european governments as well as nonprofits to not allow the use of their products for that purpose. So, yes. We could and we have in some states still cant get the compounds and do the. Same process that veterinarians use, and it is painless. But there is this problem with obtaining the drugs. Next, we will listen to some of the arguments in this case. But im struck by your description of the blocks that existed in the court. If there were blocks with mindsets about Capital Punishment, how much to oral arguments matter . Thats a good question. I think often they do not matter. Often, the justices have made up their minds ahead of time. But i think sometimes they do. I had experiences when i was a law clerk where it was quite clear that oral argument did make a difference. So we heard you filed a lot of briefs. What role did the brief play . Most cases are decided on the briefs. I will not deny that there are cases where an oral argument makes a difference, but that would be a exception rather than the rule. After listening to the audio of all these arguments, i doubt that oral argument made much difference in this case. Lets listen to some of the arguments made. Well start with the georgia arguments, and the attorney jay Hugo Harrison argued on behalf of troy gregg. Representing the state was thomas davis, georges assistant attorney general. We will listen to, first, mr. Harrison and then the assistant attorney general thomas davis. And then we will come back, and carol, well ask you what you heard in these arguments before the case. Lets listen. Carol steiker, what did you hear in those arguments . What they are arguing about is if georgia had done a good enough job in responding to the concerns of furman. Prior to the decision in furman, the way capital sentencing worked was that juries were given absolute discretion so that at a capitol trial, the instruction to the jury would be ladies into the bin of the jury, you heard the case, now its up to you to render a sentence. Whether to give the Death Penalty or a sentence of life in prison or sometimes even a time of years less than life, that decision, ladies and gentlemen, as in your sole discretion, according to your conscience. The jury was given nothing at all to guide it. That was essentially understood to be the key problem in furman v. Georgia, what the court called standard less sentencing discretion. So the new georgia statute said he needed to find one from a list of aggravating factors, like that the murder took place during the course of another felony, or that the victim was a police officer, so something to make the crime worse. Then the jury was to consider whether there were any mitigating factors that called for a sentence less than that. The question was, was that enough to cabin the unbridled discretion of the jury . The lawyer for george i was saying it was. The lawyer arguing on behalf of graphic was saying it was not, and pointed out something crucial was that the statute only dealt with the discretion that juries had in sentencing. It did not deal with the discretion that prosecutors had. If there was a problem with discretion, it only addressed one piece of it. Anything to add from what you heard there . Yes. It is kind of strange, and i think we will hear it in the next soundbite as well, to hear lawyers arguing that a statute is unconstitutional because the actors have too much ability to spare someone from the Death Penalty. And all the years since, weve been dealing with the reverse argument, that there isnt enough discretion. So its almost like youre in bizarre world listening to the argument, because its really quite opposite to what the fights has been about. Lets move on to our second bit of oral argument. This is in the louisiana case that the court had considered. The lawyers on behalf of roberts and anthony amsterdam, on behalf of louisiana, the paris assistant district attorney, james babin. Ill ask you about anthony amsterdam, will come back and have you talk about what your hearing as we start here. He was the attorney in the furman case . He was. And came back for this case. He argued for three of the defendants for the texas, louisiana, and one of the other cases. So he was the lead attorney. Two of the others had another attorney. Lets listen into a portion of attorney amsterdams oral argument, followed by james bevin. Well start with you this time. What did you hear in those arguments . Well, and the description of the louisiana statute, what the attorney for the state is saying that the jury cannot return a verdict for a lesser offense than first degree murder. Thats one of the main reasons that the louisiana statute was struck down. We really cant eliminate discretion from its system. If you freeze the balloon in one place, it pops in another. If a journey can return a verdict when they know it is really first degree just to avoid the Death Penalty, they can do that. But thats up to the jury, and thats why the statutes did not succeed. Amsterdam, of course, its continuing with his thing theres too much discretion in the system, or not enough. Too much discretion in the system, even though the mandatory statute. Whats interesting, you hear the for the first time in tony amsterdams argument this idea that death is different, and that is something the court wrote into its decision striking down the mandatory statute, saying that death is different than any kind of sentence of imprisonment, even for life, for 100 years. Its different and its severity and its finality. And that is something that the court has used over and over and over again in the years since 1976, making special rules for capital trials that dont apply in ordinary criminal trials. I want to go back to our viewers. Ill start with a tweet, perhaps as follows what you just said, carol steiker. If you are asked, has it ever been a case where a punishment was too lenient and yet found to be cruel and unusual . Thats cruel and unusual apply only to the punishment, or also to the societal view of justice for particular crime . As far as i know, theres never been an idea that something could be too lenient. I dont think it could be described as cruel if it were too lenient. So, no, that has never been applied in that context. There is a relation between what is constitutional and cruel and unusual, and what is societys view of the proper punishment for the crime. Thats it is proportionality aspect to the criminal punishment cases. Following on your comment that death its a different argument, if you were who goes by student on twitter asked, is it all clear that prison is kinder than the Death Penalty . Its not entirely clear that president s kinder. In fact, many jurors when are being questioned often say that they think life imprisonment as a cooler sentence because the time the incarcerated would have to dwell on the harm that they did. So i think there is some debate about that, about which is a worse sentence. Although most defendants vote with their feet, the vast majority of capital defendants seek to have their sentences become life sentences instead. So i think that indicates that for people who are actually facing the prospect, most of them would prefer to live, even in the conditions that life imprisonment takes place under. Almost all the. There are very few volunteers who want to drop their appeals and accept their fate. Whenever they do, a swarm of people rushed into court and claim their monthly incompetent because they want to do that, and therefore not able to drop their appeals. I really think its not a very good argument to say that life imprisonment is worse. Alyssa is in st. Peters, missouri. Welcome to landmark cases. Hi, i have a question. I was wondering what you guys thought about the Trump Administration calling for the Death Penalty for drug offenses. What was your take on that . Its not going to happen. I think thats more political rhetoric than a serious proposal and the Justice Department came out with further guidance that they would not seek legislation that would require to do that. Theyre going to make more effective use of the authority they have. Which requires a death, not a murder. It could be an overdose deaths. Its hard to know whether to take attorney general sessions at his word that this is what he wants the Justice Department to be moving toward. It would certainly be a great departure from the use of the Death Penalty in recent decades. It would put as more in line with the use of the Death Penalty in some of the more repressive regimes around the world where drug dealers are routinely executed. Next, a call from columbia, missouri. A color by the name of layered. Youre on the air. I have three points that i would like you to address. One, if your white and rich you almost never get the Death Penalty. Second, so its an equitable second, theres no evidence at all that Capital Punishment is more of a deterrence than life imprisonment. European countries that get away with Capital Punishment, very low homicide rates. My state of missouri, last time i checked, fourth highest homicide rate in the country. A Death Penalty state. Theres a big study by the National Academy of sciences that shows that almost certainly innocent people have been put to death. Id like your guests reflections on those points. Thanks. Thanks very much, ill start with you. Well, as far as the deterrence goes, there definitely is evidence of deterrence. Its a disputed question, experts disagree as to how persuasive these studies are or not. It certainly has not been proven that the Death Penalty does not deter. As far as the execution of innocent people, no, i dont believe it has been definitively demonstrated that any executed people have been innocent. What was the first point . Demographics. White and rich. There are white rich people sentenced to death. In new jersey case where a person who is a bigtime political player the, convicted and sentenced to death. He got off death row a lot of other people did, when the rules changed. So he wasnt executed, but he was sentenced to death. The fewer shares your point of view, anything more to add . No, i tend to agree. And i think the viewer also has read much of the evidence that supports those points. On the deterrents question, finally, in 2012 the National Academy of sciences did a big overarching review of all of the studies about deterrence to try to make question about whether or not there is a deterrent effect. Ultimately, they said that none of the studies alone or together make out a case of a deterrent effect. But they also say they dont make out a case that a deterrent effect does not exist, so we are stuck in a place where we just dont know but that the claimed evidence to support a deterrent effect has been essentially debunked by this expert. Id say debunked is too strong a word. There are legitimate expert disagreement on these things. Carry in franklin, tennessee. Welcome. Carey, are you there . Yes, im here. Im here. Sorry. My question is, with the use of the guillotine would that be cruel and unusual punishment . It would be unusual. And i think anything like that will seriously come back in the United States. George in pittsburgh. You are on the air. Yes, i was wondering if the term unusual, if that had to do with the actual fault of the punishment, or the ability to charge someone with that penalty. Its unclear whether those words cruel and unusual means two separate things, cruel whatever that is, and unusual, whatever that is. Or whether cruel and unusual was understood to be a term of art to describe the kind of punishments that went beyond what was permissible. And often talk as if its one thing, cruel and unusual. Other times, they tried to parse each word. Lets move on to the Court Decision in this case. They announced it on july 2nd, 1976. There was a seven to two decision that the Death Penalty did not violate the decision and that georgia, florida and texas laws were constitutional. A five four for the North Carolina laws for mandatory Death Penalty for some crimes being unconstitutional. The problem of the opinion, stored, powell and stevens with three concurrence is by just as white, joined by burger and rehnquist. To distance, brennan and marshall. So how well, lets listen to another news clip. This is from nbc nightly news announcing the decision to the public. It has been sent that the Court Follows the election returns, and there are some evidence that maybe so. Ten years ago, more americans opposed the Death Penalty than favored it. A new poll by nbc news shows that has swung around. Now, only 21 oppose the Death Penalty, 71 said they wanted restored. Today, the Supreme Court agreed. So well go back to that question of whether not the court was influenced by what the public sentiment was. Watching that news report, what do you have to add . Well, i think the polling might have had some influence, in particular, the very sharp continuous jump in support after the furman decision. It was more the legislative reaction in more than the polling. The enactment by 35 legislators and congress has really been a tidal wave of legislative expression and i think if we talk about what is unusual and the court indicated in the opinion that this powerful legislative reaction is really almost a trump card against the argument that this is somehow contrary to the views of the American People on our contemporary moral standards. If you dont look to that, what our moral standards are, where do you look . Do yourself . I think that was probably the primary issue. Before we go to some of the plurality opinion, what is the significance of the court issuing a plurality . It doesnt happen very often. It does happen. It is sometimes hard to get five justices to agree with reasoning for judgment, so there are nine justices on the court so there are always a majority for the result. The court can only do two things, a firm or reverse, but often the justices do not agree on why it should be affirmed or reserves. Here is a little about what the plurality opinion said, the punishment of death her for the crime of murder does not, under all circumstances, violate the eighth importing the moments the argument that such standards required at the eighth amendment be construed as prohibiting the Death Penalty, who congress and at least 35 states have enacted new statutes providing the Death Penalty. And he would say . I would say that is the grounds for the courts decision to roll back firm and. If you are looking to state legislative judgments who, if that is the standard, then 35 states is a lot of states. To understand more about the split with North Carolina and louisiana, heres an excerpt from that plurality North Carolina unlike florida, georgia, and texas has thus responded to the fermentation by baking deaf mandatory sentence for all persons convicting of first degree murder. A process that accord snow significance to relevant facets or the consideration the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. And he would say . That is consists with the historical record of how the Death Penalty has involved in america before mandatory before this is consistent with the historical furman, mandatory death sentences were virtually unknown. Congress enacted mandatory laws because they interpreted furman as requiring it. It is true that mandatory death sentences for an enlarged number of murderers will sweep in a lot of people. Most people think they dont deserve the Death Penalty. The court is correct that discretion is the better way to go. Britain and marshall dissented from the decision. Heres an excerpt from Justice Marshall. The American People fully informed as to the purposes of the Death Penalty and its liabilities, would in my view, rejected as morally unacceptable. Such a punishment has at its very basis the total denial of the wrongdoers dignity and worth. You told us earlier they were part of the block, to this from a moral standpoint. Often in this the dissents have great deal of lasting significance. Does this continue to muddy the waters on the view of the Death Penalty . It is interesting that you should bring up that aspect of marshals dissent, that was the nature of his dissent. I never thought that it was a very good argument. Justice marshall says, it is not what people actually think, its what if they were fully informed about the Death Penalty, what they would think and that is a condescending argument. It is arguing with someone in saying, if you were us informed is i am, you would clearly agree with me. That is not very persuasive. What is really stunning about that argument, and i have made gentle fun of it over the years in my classrooms, teaching the Death Penalty in classes, it turns out to be true. And that was just his colleagues on the bench. As justice after justice who have dealt with the Death Penalty for tech use, have changed their views about it, including some of the Major Players in greg. In particular justices stevens, powell and blackmon. They all played a role in the majority in greg bringing the Death Penalty back. They later said they agreed with martial that the death path multi was unconstitutional. Justice marshals idea that those who know the most about the Death Penalty will come to see that it is not to be supported, it has a lot of weight on the court. Lets show you the headlines and the states whose cases were involved in this. It atlanta, for the georgia case, you can see the headlines. High Court Upholds state Death Penalty. Lets take a look at new orleans, high Court Upholds Capital Punishment. How significant was this case nationally . Was it much anticipated, much discussed . Was a big discussion . Yes, it was a big discussion. Capital punishment has always been controversial, it became even more contour racial as support for Capital Punishment you it eventually 1988 became significant in the president ial election. It was a big deal, for sure. Immediately after the decision, heres what happened after the two the prisoners. James tyrone would soon were resentenced to meet the courts rejections. Leon greg, the prisoner who gave his name to the case, and Charles William in florida all remained on death. Row lets get back to calls. Carry in tennessee. Are you there . Last try, i know you are watching television but you can ask your question if you are ready. Sorry about that, we will move on to earl in ottawa, illinois. Hello . We can hear you. What is the average cost for appeals now on death row . I know one before it was billions, what does it cost now . I dont know the cost for appeals has ever been specifically calculated. It would be very difficult to calculate. Having a reliable figure on that, i dont know. It varies state to state. It is quite expensive. Tone. I would like to disagree with one of the statements about people not being innocent. Im going off one web page, theres been 162 since 1976. Illinois in fact, has the highest rate of overturned convictions because they found that the statistics were faulty. That the Death Penalty so how can you say there is a chance that we have killed even more, since the since the courts dont seem to want to listen or challenge anything after person has been killed . There is a difference, your earlier question is about a person who was innocent about and was executed. The website with the number that you refer to is a claim of innocence, of people who were convicted and then whose convictions were reversed. That is a very different thing. That number is wildly inflated. Even then, those are cases where the conviction was reversed and the person was released, that is a very different matter from the claim that a person was executed and then found to be executed. As we find of the net 1876 case, joe is up next from austin, texas. Hello. You were talking earlier about the Death Penalty as a deterrent to the general population. Sociologists talk about this a lot. Also from the standpoint, i would like to know your opinion about the victims getting resolution by the fact of knowing the perpetrator of the murder, especially haneous murders, getting closure knowing the murderer will never be able to commit murders again. A case in texas where a man committed three murders, he had been released twice and recommitted. With the Death Penalty, the murderer cant ever recommit. I wanted to know your opinions on that. I think the crime victims are an important factor. There are many crime victims who would prefer there not to be a Death Penalty. That was an issue in the recent Boston Marathon bombing trial in massachusetts, where i am from. Quite a number of the victims, including the family that was most impacted, that lost a child to the bombers, did not want the Death Penalty, because they felt the long appeals the defendant in that case would get should the death sentence be imposed would keep him in the public eye and make him a martyr in the way they did not want him to be. Victims are quite varied in how they view a death sentence and what is for them in terms of closure. It is hard to reach one conclusion. Family members and murder victims are my clients. For them, yes, the final execution is an important moment, when it is absolutely vital that the person has been punished for his crime, that he will never harm anyone else. They are very much interested to see these cases carried out. The long dragged out appeals to not be to be as long and dragged out as they are, and that is an important part of our work to try to bring some kind of efficient resolution to the case. Leonard in california. Welcome, thank you. Relative to deterrence, or any of your Panel Members aware of any studies on deterrents and the Death Penalty . For example, saudi arabia, where there Justice System is swift and sure, as i understand it. Are you aware of any studies . Comparing across american states, it is very difficult. There are differences other than the Death Penalty that interfere with the problem. To compare across different cultures like the u. S. And saudi arabia, i think, you would not be able to draw any meaningful conclusions because the societies are so very different in so many ways. What is interesting is there was a study done comparing singapore and hong kong. These are two societies that are relatively similar to one another demographically, crime rates, etc. One of them had the Death Penalty and one did not over a period of ten or 20 years. It turns out their homicide rate went up and down virtually in unison. That was an interesting International Study that seemed to suggest that having the Death Penalty or not was not what was driving homicides up and down in those countries despite otherwise similar situations. Here is what happened to the five criminals who were basically appealing their cases before the Supreme Court. We are going to start with troy leon greg, namesake in the case. Heres what happened. Him the albany georgia herald got a phone call from gregg, who sentenced had been issued in 1976, when the u. S. Supreme court upheld georgias Death Penalty law. Gregg told a reporter that he and three other inmates had sawed through bars and escaped. The reporter called the warden of the maximumsecurity prison. All men were shown present and accounted for. But it was learned later in the day the four death row murderers had indeed escaped. The ones who escaped monday were all accounted for today. Three surrendered in North Carolina. The fourth was found in a nearby river. So, and unhappy life came to a violent. And it what was interesting is that mr. Gregs escape happened the day before his execution was to take place. None of the other prisoners met the Death Penalty. Jerry lame iraq won a petition with four retile. He convinced the court his confession was problematic. He is still alive and has 17 times been denied role. Roberts was eventually released from prison, he owned a Career Counseling Service in baton rouge, louisiana. He owns a home. Charles williams sentence was commuted to life in prison in 1987 by governor bob graham, he died at the age of 66 in 2012. James tyrone would soon was released from prison 18 years after the decision and worked as a volunteer prison chaplain. Is there any takeaway for how these peoples lives and it up . I think one take away is that, some folks are released, and didnt reoffend. Our best prediction of whose life its so bladed to be worthy of extinguishment, it may not be so reliable. I think these cases have different takeaways. The two who were strayed were a product of the mandatory sentencing systems. That isnt our system. It was only there for a brief interval. The greg case is just strange. And the other case, that confession issue was one that was on the fudge fuzzy edges of the law, a lot of them looked at it and disagreed. They ended up tv deeply divided. The last court of appeals to look at the case. It illustrates that the capital cases do receive a lot of closer scrutiny than other cases, i suspect if he had not been sentenced to death he would not have gotten his first conviction overturned on that basis. There are a lot of Different Things going on in those cases. What happened immediately with the Death Penalty in the United States . If you are live in 1977, your member the case of gary gilmore, the first person executed following the decision. He met his death by firing squad in utah. With the states as large, 31 states have the Death Penalty today, but for have a governor imposed moratorium. 19 states do not. Here are some stats on death row. Since the great decision there are 1074 convicted criminals who have been executed. At the end of 2017, 2817 people awaiting execution on death row. So far this year than people executed in 2018. We are going to return to the Alcatraz East Museum and learn about the current means of executing and some of the controversies around them. The lethal injection machine we have on display is part of a twoset piece, the control module, which has two sets of all buttons, two sets of executioners have the exact same buttons they push to release the drugs. They dont know which one of them is actually really containing the lethal dose. We are always looking for new ways to improve on the electric chair. That the machine renders the victim unconscious before death makes it more humane. The lethal injection machine was first used in 1982 in texas using a combination of three drugs, which in combination causes unconsciousness and then death. The drugs used in lethal injection are made in the european union. In 2011, they stopped selling these drugs to the United States because of the practice of Capital Punishment. So as these drugs became less available. There has been some states that have moved to a onedrug method. There has been a number of court cases related to that, because some prisoners have felt they are being experimented on, that they have problems with this one drug method, that the prisoners have not been rendered unconscious or it has taken a long time for them to die. It has been considered inhumane. The shortage of drugs have led to some states reinstating the electric chair as a secondary option if these lethal junction drugs are not available. We discussed earlier that availability of these drugs. Before we go back to calls, i would like you to explain the Supreme Court review process before an inmate is put to death. How does that work . The Supreme Court can take cases in its discretion from lower courts, both state and federal. A case can be reviewed by the state courts first, and then go to the federal courts, and from there up to the Supreme Court. Where can go through this Supreme Court, and then after the normal reviews are completed, what typically happens in the last days before the election, inmates file a flurry of repeated petitions challenging their sentences. They usually do it both in state and federal courts. When those are denied, they typically file last in the u. S. Supreme court. We are hear these dramatic stories of the 11th hour when a single justice refused reviews whether or not an execution goes forward. How does that work . A lot of the decisions that the to come before the Supreme Court have to be decided. The lower courts have to finish their review before the Supreme Court can do its reveal. It often happens at the last moments that this Supreme Court is called in, when the other courts have done their work. When i was a law clerk, we always had to have a clerk their intel the decision was made. It was often in the middle of the night. Were instructed to call Justice Marshal at home, all the other ones were home to to render his decision. Even though he injustice brennan always voted, we knew they always voted to stay every execution, we still had to call him and wake him up and say, now is the time for your vote. And he would say, you know my vote. And we would do what needed to be done. Back to calls. We have ten minutes left to go. Justin, in new york. Hi, i wanted your comment on the Death Penalty regarding military aid law versus civilian law. Is there a difference . What is high treason and treason . Our people put to death more so in the military or civilian cases . The military does have a different review system from the civilian courts. We but the law being applied, as far as penalties, is pretty much the same. I dont think anyone has been convicted of treason in a long time. The penalties that are imposed or from there. Gary newport, california this high, my question has to do with moral standards and compassion and the controversy over means of execution. Can you hear me . Yes, we cant. This has to do with, can states be held accountable for applying inhumane and freakish methods of penalties and, i am trying to put this into context of criminals in a small population. The previous caller remarked as to whether or not we can execute people with the way they put down animals, or give them carbon monoxide, or Something Like that. And all of the extensive focus that we as a society put on this matter, and i want to put this into the context of another small population of citizens who are innocent. They are administer drugs in hospitals that are known to be fatal. But because the drug manufacturers dont do a very good job of filtering out people who had adverse reactions, these citizens and up dying a very painful and horrendous death. Kind of like a long drawn out execution, for which there are no protocols for putting them down for example, and ending their suffering. Thank you. The basic question is can states be held accountable for the methods they use to administer the Death Penalty . Absolutely. In recent years the Supreme Court has decided to cases challenging lethal injection protocols that neither of which courts found a problem with. Each of those cases had justices dissenting from it. The Supreme Court has just in his last month, granted review on another case in which it is going to review a case from missouri about whether an inmate there who has a serious medical condition that will make the lethal injection process particularly gruesome and painful, whether that is constitutional. So we will hear again from the Supreme Court on this issue. Wild and wonderful tweets for all the debated consequences of the Death Penalty. It makes it impossible to cracked of a staking conviction. It does. That is a very good reason to be very thorough and complete in renewing the actual conviction of guilt and the guilt of the defendant. Quickly, we dont have much time, youve talked about how many times the court has revisited this. We have a case in ohio in 1978. What was important about . That that was a case where the Supreme Court expanded out and rejected the mandatory Death Penalty. It was not enough. The Court Required that juries hear any and all mitigating evidence that might call for a sentence less than death. That involved a young woman who is the getaway car driver for her brother and other men, who robbed upon shop and ended up shooting the owner. She was out in the car and did not participate in the shooting, but even though she had been offered a plea for something less than murder, she rejected it and ended up getting the Death Penalty. The Supreme Court said the statute did not allow the consideration of her age, her lack of prior criminal records and that prevented the jury to hear the things that needed to in that case. I have very little time. What about this case . That was a case involving discrimination with the Death Penalty. This was conducted on behalf of the naacp. It was a study that looked for discrimination on the basis of the defendants race, and did not find it. It sounded a matter of fact that this study did not prove that, quite the contrary. Nonetheless the case win on appeal on the assumption that the study proved what the author said. The Supreme Court said, you cant win a case on those types of Global Statistics you have to show discrimination in a particular case. Two more recent cases, at kids versus virginia. A 63 decision put declaring unconstitutional executions for those with intellectual disabilities. In 2008, this immense case declaring unconstitutional execution for victims committing crimes under the age of 18. The Court Continues to grapple with. This were going to have you listen to justice black man talking about his shift on the view of Capital Punishment. Did the views on Death Penalty change at all over the years, or remain the same . I think it remained the same. I was able to fake that the legislative judgment, that if the states wanted it this way through the expressions of the legislator they were entitled to have it that way. Finally, the case a year or so ago, i still felt the same. I looked at it from the point of application of the Death Penalty. I felt that it could not be administered and applied in line with equal protection and due process. Do you think youhad more faith in a Fair Administration . Letting the states have a trial, that was a mistaken position to take. In later years i was later convinced they could not rationally apply it. There is one justice making an intellectual evolution in his position on the Death Penalty. We have about a minute left for each of our guests. Lets look at a Closing Argument for them on a very important topic of our country that has been grappling with this since its founding. Where do you see this debate going in the u. S. , specifically with the constitutionality and legality in the courts . In the last 20 years, the Death Penalty has really fallen off the cliff. We are seeing 300 sentences a year, and almost 100 executions in the 1990s. Today we have maybe 30 death sentences a year, maybe 20 executions, down from the peak in the 1990s. I think it shows the direction our country is moving in. I think the Death Penalty is withering on the vine. I think we have fewer executions for two reasons. One is, more winners and both prosecutors and juries are being more selective in who they choose to seek and impose the Death Penalty. I think the support for the Death Penalty in the very worst murder cases remains solids. I think the constitutional question was correctly answered and greg, as far as the constitution goes that should be imminent. This is our 11th of 12 cases in landmark cases. Special thanks to the National Constitution center for their help. And suggesting some of the guests that we bring to the table. Thank you for your calls and tweets tonight. We appreciate you both being here, you both have spent a great deal of your career thinking about this question. Thank you for sharing it with our audience. Thank you. Thank you. Inside that car, is the central figure in a major civil rights case returning to his home in los ill toes tonight, after winning his fight to enter medical school. I think it is a reflection of what life is like in the United States