America's Death Penalty

This is a partial transcript of "Special Report With Brit Hume," Dec. 14, 2004, that has been edited for clarity.

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BRIT HUME, HOST: A death row inmate in Connecticut says he hopes his execution next month will bring peace of mind to the families of his murder victims. His lawyer has agreed. But apparently in Connecticut that may not be enough to carry out his sentence.

The Connecticut case coupled with the Scott Peterson sentencing recommendation Monday have put the death penalty back on the front pages.

What is the state of the death penalty in America today? For answers we turn to our favorite law professor Jonathan Turley of George Washington University.

Jonathan, welcome.

JONATHAN TURLEY, LAW PROFESSOR, GWU: Thanks, Brit.

HUME: First of all, what about the Connecticut case? Legally do the wishes of the convicted killer, the wishes of other groups or the wishes of the families; does any of that matter legally?

TURLEY: It is supposed to matter. Many states have an automatic direct appeal after a conviction. And so that will go forward regardless of your wishes in many states. But at this stage it should matter as long as you are competent. And this guy has had a couple of psychiatrists say he’s as sane as I am. But the judge is sending him back for a third time to say I want to make sure, even though the judge said in the hearing.

HUME: So it does matter what he wants?

TURLEY: It does matter as long as he is competent. His lawyer is instructed by him not to pursue it.

HUME: So in effect whatever appeals there would be are terminated by the fact he doesn’t want to mount them.

TURLEY: They should be, except the ACLU is trying to delay that. I mean these groups are thinking about litigation.

HUME: And do they have standing to do that?

TURLEY: I think it is wholly unlikely that they would ever be given much credence in the court. And they probably won’t succeed in delaying it. This guy seems to be competent. There is perfectly good reasons you don’t want an appeal, including the fact that you are guilty. And so, I don’t see this as a major stumbling block. It does matter if you don’t want to appeal.

HUME: Now, where are we in the death penalty in America? Whose got it? I mean how many states have it? How many don’t?

TURLEY: Well, there’s 38 states that have it, plus the federal government. In fact, the federal government has executed one individual in 2003.

HUME: How many — I mean how often is it used roughly?

TURLEY: It actually has had a sharp decline. Since 1999, we have seen the number of death sentences go down by 50 percent. And we have also seen the number of executions go down by about 40 percent. I’m sorry. The number of death sentences is actually half of what it was in terms of 1999. But when you look at the odds of a reversal, one study said it’s a 68 percent likelihood that a death sentence will be overturned in this country.

HUME: Sixty-eight percent.

TURLEY: Right.

HUME: So your odds are pretty good if you are on death row and you keep the appeals going.

TURLEY: Well, particularly in California. The last two people executed in California were on the death row for 20 years. And when I looked at the numbers, it turns out...

HUME: How long ago were they executed roughly?

TURLEY: These are recent. These are recent — relatively recent execution. But in both of the individuals, I look at the number. And it appears if you are on the California death row, you are three times more likely to die of natural causes or suicide than you are of the actual capital punishment sentence.

HUME: So it would appear Scott Peterson (search), for better or for worse, doesn’t have to worry about being executed, certainly not any time soon.

TURLEY: Oh, that is right. And in California, it moves at a perfectly glacial pace. The average in the country is 9.6 years — I’m sorry, 9.6 years on the national average between a sentence and an execution. In California, last two have been 20 years. The fastest, of course, is Texas. Which is about 7.8 years.

HUME: Now, the argument for the death penalty is, among other things, that it deters. And one senses that the deterrent value is diminished by the lengths of the appeals. Or is there any study to show that, any reason to believe that?

TURLEY: You know, the case for deterrence has actually been diminished, I think, in the last decade or so. There’s not a lot of data you could show that shows a relationship between the death penalty in actually deterring crime. Most of the people sentenced to death have committed particularly heinous crimes and are not the types of people who are susceptible to this.

HUME: I know. But you don’t know how many people who were susceptible to it didn’t commit them because of that reason.

TURLEY: That is a good point. I mean the two other arguments you hear is straight retribution. One is just simply.

HUME: It’s just.

TURLEY: This is just. In the case of Scott Peterson, a lot of people don’t want to keep on feeding a guy, maintaining a guy who killed a wife and an unborn child.

HUME: Which is more expensive? To fight him through the appeals just in terms of — does anybody — I mean nobody may know this. So I’m asking this question kind of out of my armpit here. But is it more expensive to commute the sentence and let him rot in jail for the rest of his life and keep feeding him? Or is it more expensive to fight the appeals?

TURLEY: Well, in many cases it is actually cheaper to give him life, because for example, if you take an individual that’s in front of the Supreme Court this term, this is his second time in front of the Supreme Court.

HUME: This is one person in particular you’re thinking about.

TURLEY: One person. He has been back and forth through the federal system continually for almost two deck decades. The cost of that case is overwhelming.

HUME: Legal bill, one presumes.

TURLEY: Yes. Legal bills are overwhelming. And so, what you are left with is a system that is high cost.

The other reason why the death sentence seems to be falling is some people believe that all the stories about exonerated people from death row is having an affect on jurors. Since 1978, 117 people have been exonerated who were on death row.

HUME: You are talking about jurors fearing that if they impose a death penalty, if the juries do it in cases where jurors have the — do the sentencing, that they have in the back of their minds the notion that they could, just they could be wrong.

TURLEY: That’s right. And there is a potential — there does some to be some correlation with the decline in sentences with these high profile cases of DNA exoneration (search). And that may be having an affect.

HUME: Right.

TURLEY: And at the same time, the public is shifting. About 50 percent of the public now says they would prefer life without parole to the death penalty.

HUME: One wonders how that might have to do with the tales that have come out of prisons of what life can be like in there.

TURLEY: Yes. Now, I have to say life without parole, personally, I think it’s perfectly rational for this guy in Connecticut to say I want out, time to punch out on this. Because most people would not view life without parole as a good alternative to death.

HUME: Life with or without, you mean.

TURLEY: That is right. It is.

HUME: Got you.

TURLEY: So this Connecticut guy may be the ultimate of rational.

HUME: All right. Jonathan Turley, great to have you. Thank you.

TURLEY: Thanks.

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