Spring 2001: Does Capital Punishment Have a Future? Transcripts Kent Scheidegger's Answers to Questions The views expressed in this document have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association, nor do they represent the official position or policies of the U.S. Department of Justice or the ABA Standing Committee on Public Education. Kent Scheidegger has been the Legal Director of the Criminal Justice Legal Foundation since December 1986. He has also served as Vice-Chairman of the Criminal law and Procedure Practice Group of the Federalist Society since 1996. His articles on criminal and constitutional law have been published in law reviews, national legal publications, and congressional reports. Legal arguments authored by Mr. Scheidegger have been cited and incorporated in several precedent-setting United States Supreme Court decisions. [Read Mr. Scheidegger’s bio).] Q. Why do you support or approve of the death penalty? A. The death penalty serves three functions. First, for some crimes any lesser punishment is inadequate as a matter of basic justice. In 1972, when the death penalty was temporarily abolished, murderers such as Charles Manson and Richard Speck received commutations to life in prison. They were not punished sufficiently for their crimes, and I believe that is fundamentally wrong. Second, an executed death sentence absolutely guarantees the killer will never kill again. A life sentence does not. There are many cases of people killed by murderers who were paroled, escaped, killed within prison, or who arranged murders from within the prison. In one particularly notorious case, a murderer sentenced to life in prison for his first murder arranged from within prison for the murder of the witnesses, in retaliation for their testimony. Three innocent people are dead because he was not executed for the first murder. Third, I believe that an effective, enforced death penalty deters some murders. Studies go both ways on this, so one cannot say that it has been conclusively proven either way, but stop and think about it. A rapist knows he will go to prison for a very long time if he is caught, and he can reduce his chances of being caught by killing the victim. If the difference in punishment between rape and murder is 20 years versus life, he has far less incentive to let the victim live than he does if the penalty for murder is death. Is the argument really credible that no rapist ever decides to let a victim live because he fears the death penalty? I believe many innocent lives will be saved. One is enough. Q. Have you ever witnessed an execution? A. No. Q. What conditions must be met in order to be granted habeas corpus? A. There must have been a constitutional error at the trial, with a substantial and injurious effect. The petitioner must have raised his objection at the proper time. Q. Does racial discrimination in implementing the death penalty exist today? A. No institution in America is completely free of racial discrimination. We can determine, though, that the decision of which cases result in death sentences is determined primarily by the legitimate factors of the relative heinousness of the offense and the perpetrator’s record, and not by the race of the defendant. Indeed, a study funded and conducted by opponents of capital punishment came up with the “remarkable” finding that no race-of-the-defendant effect could be discerned. The claim is sometimes made of a “race-of-the-victim bias,” which means, in essence, that the death penalty is not being imposed often enough in black-victim cases. The studies claiming to show this have been rejected by courts, as fundamentally flawed, when they are actually litigated. Even if they were valid, though, they would not indicate that anyone on death row does not deserve to be there. They would indicate that there are people who deserve death sentences who got life instead. Q. What if information is discovered after a person is convicted to show he is innocent? Should a person still serve life or get the death penalty because of the limitations on habeas corpus? What other remedies does someone have besides habeas? A. Both the limitations created by the Supreme Court and those enacted by Congress contain exceptions for the actually innocent. Executive clemency, not habeas corpus, is the primary remedy when evidence of innocence is discovered after the normal review process is completed. Q. Do you know of any cases where people have died wrongfully because they weren’t able to appeal the decision due to habeas corpus limitations? A. There are no cases in the modern era (after the Supreme Court decision in Furman) of anyone being executed and subsequently determined to be innocent, for any reason. Q. What are the chances of the reform on habeas corpus being reversed? A. Very slim. This was a landmark, long-overdue reform, and any attempt to reverse it would meet with very determined opposition. Q. What can people without money do in capital cases to get a lawyer? A. All indigent defendants in all felony cases have a constitutional right to appointed counsel for trial and appeal. Although counsel on habeas is not constitutionally required, all states provide counsel in capital cases. The federal government then provides counsel for federal habeas review. Continue reading>> Spring 2001 Summit Home | Learning Links & Readings Student Activities| Participants | Transcripts National Online Youth Summit Home