The modern view of capital punishment.

• Position: Panel Discussion

Chris Longmore: Good afternoon. My name is Chris Longmore. I'm the editor-in-chief of the American Criminal Law Review, and I'd like to welcome you all to our annual debate: The Modern View of Capital Punishment.

It's my honor today to introduce our moderator for today's debate, Professor Samuel Dash. One of the reasons why it's such a great honor is that without Professor Dash we would not be here today, because a little over twenty-five years ago Professor Dash was the one who brought the American Criminal Law Review to Georgetown University. So we're very thankful that he brought us here and gave us this opportunity today. He's been with us at the Law Center since 1965. He's had a long and distinguished career in the criminal law field, which will allow him to really be a great moderator today, because he knows the issues from all sides. He's been a trial attorney with the appellate section of the criminal division of the U.S. Department of Justice. He was Chief of the Appeals Division of the D.A.'s office in Philadelphia, and he was later D.A. of Philadelphia. He specialized in trial practice work for eight years at a couple of different private law firms. He's also served as the Executive Director of the Philadelphia Council for Community Advancement, which was a pioneer program in poverty. He also is probably most well-known for his time as Chief Counsel with the U.S. Senate Select Committee on Presidential Campaign Committees, also known as the Watergate Committee. And he has made a lifetime of contributions to the improvement of the law, including chairing the ABA Criminal Justice Section. He's been President of the National Association of Criminal Defense Lawyers, he's chaired a special committee on criminal justice in the free society, and he is a member of the ABA Standing Committee on Ethics and Professional Responsibility.

I would now like to ask all of you to give a warm welcome to Professor Samuel Dash.

Professor Dash: Thank you. Welcome to this wonderful, continuing debate series for the American Criminal Law Review. The debate we are going to hear today on the death penalty began many years ago, actually in Biblical times. Probably there was no more severe penal code in the history of the world than the capital offenses in the Old Testament. Almost every crime defined in the Old Testament carried with it the death penalty. And yet the Sanhedrin, which was the supreme court that ultimately had to pass upon the capital death penalty, set aside certain procedural rules that made it almost impossible to ever convict somebody so many years ago. So much so that the Talmud had a saying that it is a cruel Sanhedrin that would execute one person in seventy years. And that has been the problem of the death penalty where the sovereign has been asking to execute a human being, and that debate is still here today. It's very alive in America. The death penalty is very much with us today and we are very, very fortunate to have our two speakers.

Judge Alex Kozinski -- we are so fortunate to have him here from the Ninth Circuit, somebody who has actually had and has the awesome experience of having to pass on, to judge the validity of, an imposed death penalty. For the past twelve years he's been a judge, a circuit judge of the U.S. Court of Appeals in the Ninth Circuit. Before that, he was Chief Judge of the U.S. Claims Court. He was Special Counsel to the Merit System Protection Board. He was Assistant Counsel to the Office of Counsel to the President. And in his private practice he was a lawyer at Covington & Burling and in Forrey, Colbert, Singer and Gellis. He also served as law clerk to Chief Justice Burger and to Circuit Judge Anthony M. Kennedy, now Justice Kennedy. Judge Kozinski supports the death penalty and he has stirred up quite a controversy by his essay in The New Yorker entitled "Tinkering With Death."(1) He also is the only federal judge who owns up to the fact that he showed up on the Dating Game. He was bachelor number two, he was chosen, and he won a trip to the world-renowned Guadalajara Bowling Tournament. So, welcome, Judge Kozinski.

Our other participant is well-known now here at Georgetown. He's a visiting professor at Georgetown and teaches a seminar in capital punishment. He's eminently qualified to speak on the death penalty. Since 1982 he's been director of the Southern Center for Human Rights in Atlanta, representing persons facing the death penalty and prisoners challenging unconstitutional conditions in prisons and jails. He has argued a number of cases against the death penalty before the Supreme Court and also has presented positions and arguments at the United States House of Representatives and the United States Senate. And he has written a number of law review articles on the death penalty. But even before his fifteen years as director of the Southern Center for Human Rights, Professor Bright has devoted his professional career to public interest law and service. He was a trial attorney here in the District of Columbia in the Public Defender Service, one of the most outstanding public defender services in the country. He was a legal service attorney for the Appalachian Research and Defense Fund in Kentucky, and he directed clinical programs for the five law schools in the D.C. area. And for his outstanding public service he has been awarded the National Legal Aid and Defender Association Kutak-Dodds prize, the ACLU Roger Baldwin Medal of Liberty, and the ALBA Litigation Section -- John Minor Wisdom Professionalism and Public Service Award. We are delighted to have you with us, Professor Bright.

Now, the format that we are following is somewhat like the presidential debates. Judge Kozinski, would you please take the rostrum there and Professor Bright, will you take the rostrum there. I will pose questions to our wonderful participants, and I will begin with a question to Judge Kozinski.

Judge Kozinski, civilized societies have always found it necessary to provide some justification for various forms of punishment, such as rehabilitation, deterrence, and retribution. Which goal or goals do you say the death penalty serves?

Judge Kozinski: The death penalty probably serves some deterrent effects. It's always difficult to tell exactly what deterrent effect the criminal law has. Some of it is very difficult to measure. We don't know for a fact that any criminal law we have actually has a deterrent effect. We know that large numbers of crimes are committed despite vigorous law enforcement, but we also are confident that the more severe the punishment, the less crime we have. The most severe punishment being death. We have some confidence that results in some deterrence.

Retribution is a good one. I think there is a function for the society to perform in expressing moral outrage, and it is entirely appropriate for society to deem some acts so evil, to be so demeaning of human life, that we can say the perpetrator has forfeited his own life by committing them.

Also, there is specific deterrence. Whatever you may say about the death penalty, no one who has ever suffered it has come back and killed again. Every other form of punishment is not nearly as secure. People who get life sentences escape, regularly, and kill. They kill and maim and perform other unspeakable acts in prison. So, certainly from the point of view of your specific deterrence, the death penalty is 100% effective.

Professor Dash: Professor Bright?

Professor Bright: I don't think in today's world that probably any of these justifications measure up. I think there are really two questions about the death penalty. One is where are we as a society today compared to where we were, as Professor Dash said, in Biblical times when the death penalty was provided for so many different crimes? Does there come a time when a society gets beyond some of the more primitive forms of punishment, such as killing people, cutting off their fingers, boiling them in oil, the stocks, some of those things?

Now, at one time there was a necessity argument. There weren't any prisons, there wasn't any place to put people, and therefore in a frontier society, the death penalty or the stocks or some of these other more primitive forms of punishment, were appropriate. That necessity is not there any more today. Today we have maximum security prisons, we can give people life imprisonment without any possibility of parole to protect the community. I'd have to say that I tend to disagree with my distinguished colleague, and I do want to thank Judge Kozinski for being here because he's written so many thoughtful things on these issues and honors us by his presence here today, but I do disagree that the more severe the punishment, the more deterrence. You look at our society today -- the United States has the highest rate of incarceration of any country in the world. We sentence an awful lot of people to death; we provide for over fifty death penalties in the federal system. Most of the states now have it. Recently we executed over fifty people. We are going to soon be executing in the hundreds, but I don't think that you can deny people education, opportunity, and even hope and think that you're going to deter them by scaring them into behaving themselves. I don't think history will support that.

Quite apart from that, I think a second issue and a second part of this question, even if in the abstract -- and there's no question that 70% or more of the people in the United States in the abstract support the death penalty -- the question remains though, would they support it if they saw the actual people. If they saw Pedro Medina, 2 the man who was executed last week in Florida, who came over in the Mariel Boat Lift, who was mentally ill, schizophrenic, and also brain damaged? When it comes to strapping that man down in the electric chair and putting 2,000 volts of electricity through his body, when you look at that, how do you feel...