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The Death Penalty on Trial
January 27, 2005
Bill Kurtis, Franklin E. Zimring


David Theroux
President, The Independent Institute

Good evening, ladies and gentlemen. My name is David Theroux, and I’m the president of the Independent Institute. I want to welcome you all to our program this evening, despite the cool weather. At least it’s not raining.

Those of you who are new to the institute, we hold events like this, which are called the Independent Policy Forum, on a roughly monthly basis. And the Independent Policy Forum consists of debates, lectures, panel discussions, and so forth on major public policy issues.

As you know, our program this evening is entitled, “The Death Penalty on Trial,” and we’re very pleased to feature two books by two authors. The first one is The Death Penalty on Trial by Bill Kurtis, and the second one is The Contradictions of American Capital Punishment, by Frank Zimring.

For those of you who are new to the Institute, hopefully you picked up a packet when you registered. You’ll find information about our publications. There’s also a sheet on tonight’s program. I want to point out, on the sheet at the bottom, you’ll notice that our next event will be held on March 1st, and that will feature Michael Scheuer, who’s the renowned anonymous author of the book Imperial Hubris, and that program is called “How—and How Not—to Fight Terrorism.” Again, that’s on March 1st, right here.

I also want to invite you to visit our website, at The Institute itself is a public-policy research institute. We sponsor studies by many scholars. We produce lots of books. We have a quarterly journal called The Independent Review. And we host many conference and media projects based on that work, to engage debate in as many different public circles as possible.

Our program tonight is, I think, quite an important topic. It’s provocative, to say the least. It’s very timely. In recent years, the new forensic science of DNA matching in criminal justice has become a powerful tool to reduce the problem of wrongful convictions. At the same time, it’s been shown that the criminal justice system has sentenced innocent people to death, and that often the nature of the trial is in question itself.

Death penalty cases such as those of Scott Petersen, Robert Blake and others in California and elsewhere regularly receive high-profile media attention. And the death penalty has certainly become a hot-button issue. However, given the imperfections of the criminal justice system, the question that I think many of us should be asking is, when and how can we be confident that the guilty, and not the innocent, have been convicted?

While crime rates nationally have been dropping for more than a decade—for example, homicide rates are down by about 43 percent from 1991 to the year 2001—the number of prisoners on death row has increased from about 500 in 1978, to 3,374 in 2003, of which only about 12 percent have been executed.

So how bad, then, is the problem of wrongful convictions in death penalty cases? How should the criminal justice system be reformed to reduce wrongful convictions and still protect the innocent from violent crime?

To address these issues, we’re very pleased to have two distinguished speakers this evening. Our first speaker is Bill Kurtis. Bill is the anchor of the programs American Justice, and executive producer and anchor of Cold Case Files, both aired on the A&E television network. He also produced and hosted the TV science series The New Explorers, which originally was aired on PBS and then shifted to A&E as a result of—well, I’ll let Bill tell that story. That may be another IPF topic, actually.

Originally trained as a lawyer in Kansas, he almost took a position with a law firm in Wichita, Kansas, which is where my wife is from—and, I think we’re all for the better for that decision.

Today he is founder of Kurtis Productions. He’s been an anchor of the CBS Morning News, executive producer of the Emmy Award-winning Investigative Reports, co-anchor of the news at WBBM-TV in Chicago, which is when I first came across him when I was a graduate student at the University of Chicago.

His many awards include the Emmy, the Cable Ace Award, the Thurgood Marshall Award, the Genesis Award, the Peter Zenger Award from the Society of Professional Journalists, and Chicago International Television’s Lifetime Achievement Award. Mr. Kurtis was elected to Sigma Xi, the scientific research society, and he’s a member of the board of directors of the Nature Conservancy Field Museum and National Park Foundation. I’m delighted to introduce Bill Kurtis.

Bill Kurtis
TV Anchorman: Cold Case Files, American Justice; Author: The Death Penalty on Trial

Thank you, David. And thank you for putting the Independent Review with the picture of that beautiful woman on the front. A journal of political economy. Right? It’s the power of advertising. I’ll just put it over here so it doesn’t distract me.

Thank you, David. I don’t know if there are any Californians here at all. Everybody seems to be from Chicago. Back to see the old guys. Even Frank Zimring, and thank God the professor is here to kind of set the record straight, after I finish my remarks.

The position of this book is against the death penalty, which is a little unusual for me because I’m usually not advocating a position. We still try to tell it down the middle and present two sides. On the other hand, even Murrow said that when you research so much and tell a story, sometimes you have to call it.

And I thought it would be unfair if I didn’t state at the outset that I’ve come to the conclusion that the system is too error-prone to continue the death penalty. And maybe my remarks for the next half hour will try and tell you why.

I started out supporting the death penalty. I was for the Constitution, I loved America, and I loved the death penalty. I came to believe that the system is the best in the world. I was trained that way in law school, and I believe that eyewitnesses tell the truth, best evidence. I believe the police absolutely do their job, probably are not wrong very much of the time, that the system works. That 10 guilty people should go free to save one innocent person. And there’s a Greek word, “peripeteia”, which means that all you have believed comes to a point sometimes when you realize it is wrong. And I came to that point five years ago.

From Death Penalty Advocate to Opponent

Let me fill in just a little background. I left law school, started on a 30-year career with CBS and CBS News, spent three years out here working out of the West Coast bureau, and I had occasion to cover the Manson Trial for 10 straight months, the Angela Davis Trial, the Soledad Brothers here, Juan Corona over near Sacramento, back in Chicago, Richard Speck. So I had my fill of mass murder, and finally went back to a straight, general-assignment reporter. But all those people, I felt, represented true evil and deserved to die. Why would I change my mind? What would be the epiphany?

I came to that point about five years ago, the same time that Governor George Ryan of Illinois realized that 13 innocent men had been released from death row, and they had only executed in the last 10 to 20 years, 12. And he said, something’s wrong here. George is a pharmacist, not a lawyer. But a kind of common sense prevailed, thank God. And he was not institutionalized, as so many of us lawyers are, in the system. And he imposed a moratorium. He appointed a blue-ribbon panel to find out why and how we could change it.

And it caused me, also, to begin searching why I believed in the death penalty. And I realized that I didn’t really know anything about it. I believed it in a knee-jerk reaction.

When I started reading about it, I started with an opinion called Furman v. Georgia, which in 1972, you may recall, outlawed the death penalty and declared it unconstitutional. And when I started reading into that opinion, I found that all the justices on the Supreme Court felt that this was the end-all case. It was five to four, but they all wrote these long treatises in the opinion. And they were repeating each other for the history, and the lack of debate, and lack of founding fathers’ guidance on where it came from and what is cruel and unusual, and I came upon some interesting phrases.

One was that the real reason many people side for the death penalty, which is as a deterrent to other crime, they dismissed in a paragraph. They said, it’s not a deterrent. This was virtually every Supreme Court Justice. There are too many variables. There’s not one credible survey or correlation between numbers that can show it has any effect on homicide at all. That’s fine.

Thurgood Marshall’s opinion had a line in there that really kicked me into high gear, and it said, if people knew what went on at a death penalty trial, they’d be against it. And I said, knew what? And so I tried to put my investigative reporting skills to work, and I went through 117 cases of men and women who had been exonerated, released from death row, to pick two that I could really investigate, beyond the judicial review, down deep in the tactical decisions that are made by the prosecutor and defense throughout the course of a trial, because I thought that was where things would be going wrong.

I had a guide, and the guide came from some Northwestern University journalism students and David Protess, their professor, said, “We hear that there was something funny with Anthony Porter’s trial. Some witnesses may recant. Why don’t you go down there and interview the witnesses? It’ll be a good journalism assignment.”

Well, they went down and talked to the key witness, and she blurted out, “Yeah, they made me say it.” Made you say it? Which led to DNA, which led to Anthony Porter walking off as an innocent man on death row, and led to another and another. And suddenly, I said, “Journalism students found this? What about lawyers? They must have known that this went on. [laughter] What happened to law students? They’ve got their heads in the sand.”

I chose two cases. I wanted them to be white, because we know that the death penalty is applied discriminatorily against blacks and minorities. I wanted them to be perfect cases—good prosecutor on the surface, defense lawyers, a good investigation, at least from the outset, a slam-dunk prosecution.

The Ray Krone Case

And I chose the case of Ray Krone, who turned out to be a poster-child for exoneration. He was a straight-up guy, top 10 percent of his high school class, York, Pennsylvania. Joined the Air Force. Nine-year veteran. Got out in Phoenix, Arizona. Became a mailman with the Postal Service. Liked to go to a lounge, a sports bar, ironically called the CBS Lounge. Why? I don’t know. I was being led. [laughter] And made friends, liked to throw darts, had a game. He was single. Lived with a roommate, just rented out the room. And made friends with a young woman named Kim Ancona. Not boyfriend/girlfriend, but they spent some time together.

And Kim became a bar manager. And her first night of managing the bar was December 28, 1991, I believe. And someone said, can we help close the bar? And she said, no, Ray’s going to help me. And with that, everybody went home, and Kim started cleaning the bar.

There was kind of a blank place between 12:00 to 1:00 and 8:00 the next morning when the owner, Hank Arredondo, comes in, and realizes the front door is unlocked. He thought that was a little strange for a bar manager whose first night, was on the job, she was so excited about it. As he moved in past the freshly-mopped floor, he came to the men’s bathroom and saw a naked body stretched out, head underneath the urinal, feet underneath the wash-basin, went in, and it was Kim. She had stitch marks from a knife around her neck, but that wasn’t the killing wound. It looked like a throat cut. The killing wound was a straight stab through her lungs and toward her heart.

She was obviously dead. He called the police. They began their forensic examination. They got 58 fingerprints, found a footprint, took DNA off the body, but in 1991, DNA was not yet of common use. That came in the mid-90s, with the development of a little machine about this big called PCR—Polymerase Chain Reaction—which allowed forensics to amplify a DNA sample so you could test it more thoroughly.

She had a bite mark around her nipple left by the killer, presumed, and so they took a mold of that, and they immediately began to find Ray after talking to some of the friends. They got Ray’s address from her diary, and he lived about a mile away. Knocked on his door—Ray came to the door—said, do you know Kim Ancona? Informed him that she had been killed. He expressed great surprise and they said, we noticed that your teeth are crooked. Do you mind if we take a Styrofoam cup, would you bite into the cup, and we’ll take a mold and we just want to match it. It’s just routine. We’ll match it against a bite mark on the victim. He said, absolutely. Went down to the police station. They made a mold of the teeth.

And a young forensics scientist, first year on the job with the Phoenix Police Department, took the mold to the morgue, and lowered it down to align it with the bite mark around the nipple. But, instead of holding it above the bite mark, we believe that he inadvertently tried to fit it into the bite mark on the body, touching the body. Now, if you touch your skin, you’ll make a mark, but it will go away instantly. It’s resilient. A corpse will not go away. So he left Ray Krone’s teeth marks on the body. From that moment, all expert witnesses were measuring Ray Krone’s teeth around the nipple of the victim.

Ten years in prison, millions of dollars. Several million, in a murder trial. Two trials, two juries, and if he had done the job right, all that would have been saved and Ray Krone happened to be an innocent guy. That was one mistake.

The second mistake was that this new, fresh, young forensics scientist [Dr. John Piakis] was not sure of himself. It was the first bite-mark case, probably first investigation for him. And so he sent a photograph of the bite marks to the leading odontologist in the country, Norman Sperber, in San Diego.

Sperber calls him, they talk—I have the phone records in the book. (That’s so dirty, isn’t it, for an investigative reporter to actually get it down there?) They talk for quite a while, and the long and short of it is, Sperber is telling him, you don’t have a match. The incisors don’t fit.

That is exculpatory evidence, which means, freed from blame, it could have prevented it all. It never makes it to the prosecutor, option one. Option two, it made it to the prosecutor, who hid it. Option three, Piakis just didn’t know the value of it and went on looking for another expert witness.

Jeffrey Jones was the defense attorney who was appointed to represent Ray Krone. He was paid $5,000. Not for the three-week trial, for the year in representing Ray Krone—$5,000, which doesn’t get you a lot of representation.

Now, Piakis knew enough to find the best forensics bite-mark expert in the country. Jeffrey Jones got his own dentist, and he wanted him to go with him to Las Vegas to talk to the expert witness for the prosecution. And he was so good, Jeffrey Jones came back and said, Ray, you did it. You did it. That’s your bite mark. Why don’t you come clean? I’ll try to bargain for, and Ray said, no, I did not do it. And that was the extent of the defense. He got $5,000. The state, Maricopa County, paid $50,000, to the expert witness alone. They also had a full compliment of prosecutorial team, plus the crime lab, plus the sheriff’s and police department, building the case against Ray Krone.

Go to trial. The day before trial, in comes the prosecutor with a videotape. Said, I’d like to submit this videotape to be used by my expert witness. The videotape showed, with layers and dissolves, a beautiful picture of the mold of Ray’s teeth coming down, just perfectly fitting like a glove into the bite mark on the body. The judge said, no, you can’t spring it on us the day before trial, you haven’t told us about this. A week later, he admitted it.

He got a second trial on that alone. Second trial comes—in the first trial he’s found guilty, sentenced to death. Second trial, the jury comes up and is shown the same videotape, virtually the same evidence, and says, well, the videotape shows that the teeth fit. So everything else has to be explained.

DNA from a third person that was found on the tank top, it must have been spray. She was a barmaid, and you know how people kind of spray when they talk; well, that must have been it. Or maybe she got her jeans at a thrift shop, or—I mean, they were in there deliberating like that. How do you really work against that? And they convicted him again.

The judge, however, thought something was funny, and sentenced him to life without parole instead of death. So at least he’s not going to die this time.

The greatest respect goes out to lawyers who spend sometimes 10 years or 20 years of their lives with wrongfully accused and wrongfully convicted. If you talk to a lawyer who has had a death penalty case and has lost, and who believes his client is innocent, they’re never the same. It’s like losing a brother in combat. And they stay with it.

Well, Christopher Plourd, who became a new lawyer, lost that case. But he knew that Ray was innocent. So he kept trying for other DNA samples. They were able to pull a DNA sample from that tank top, from around the nipple. And they got a profile. Third person. It’s not Kim’s, it’s not Ray’s.

Well, now it is the late 1990s. So he takes the sample, puts it in the CODIS data bank, which compares it, by computer, to thousands of other DNA samples. They get a match in about 15 seconds. They trace it back to a sexual predator who lived 600 yards from the bar at the time. They go down, he happens to be in jail. They interview him, he confesses. He goes to trial in March. But Ray Krone, who is now free, spent 10 years of his life, because of some basic mistakes.

They get us into what, in my research has found to be, six, seven, eight classic mistakes. They have three of them in this case. One is an over-zealous prosecutor who, in the adversarial system, wants to win so badly that they ignore evidence, hide evidence, suppress evidence. So they won’t destroy their case.

Ineffective defense counsel, second biggest cause. Jeffrey Jones didn’t want to lose. He wanted to do something as a public defender, really, but he was not up in talent or resources to what he was up against, which was a very powerful, talented prosecutor with all the resources that Maricopa County could bring to bear.

Bad science. Forensics—DNA is the best thing that has come along for law enforcement and many other things, ever. Better than a fingerprint. There’s not much interpretation, really. You run the samples and get a match, and it can be dead-on.

So, how does it fail? It fails because of human infallibility. Right now in Houston, there are up to 8,000 cases on the shelf that are in doubt, tainted by bad lab work. In Illinois, we found that there was forensic fraud, especially when the lab was in the same building as the police department. It was the police crime lab. Forensic fraud has led to an awful lot of bad work.

And now, one of the arguments is that, well, that was in the early 90s, or the mid-90s. Now, they don’t do it as much, don’t make as many mistakes. Well, forensic mistakes are still made.

Let’s go back one year. The lawyer in Oregon who is charged with participating in the Madrid bombing in Spain because they find a fingerprint. Three FBI fingerprint experts render the same verdict. Yeah, it’s a match. We get 15 points of similarity. Bring in a fourth independent, and he agrees. They send it to Spain, and Spain laughs and says, “We can only find seven. We’re not going to go to trial with that. That’s bunk.” They sent it back, and sure enough, they had made a mistake. Nailed the Oregon lawyer, who is now suing for a lot of money, but as recently as that, it was not on computer. These were eyeballing fingerprints by experts.

The Todd Willingham Case

There is one case where forensic fraud is not really fraud. I’ll have to describe it for you. It goes to the issue of whether or not we have executed an innocent person. Sister Prejean has written a book, also, and makes the argument that there are two cases where we have executed an innocent person. And indeed, justices say that, with all the mistakes, we have to have executed certainly one.

I have not found the good data. I don’t make that claim in my book, because it’s difficult, after somebody is dead, to spend the money to go back and prove an innocence when you couldn’t prove it for 20 years. However, there are now people who are doing just that, to put the stake in the heart of this system and prove that we have executed someone.

But the person who comes closest is Todd Willingham, who last February was executed. He was the first arsonist to receive a death sentence and be executed. The evidence against him was from an arson investigation. His children burned in the house. He ran out the front, ran around to the back to try and get in, was hysterical. But neighbors said he didn’t try hard enough to go in the back and bring them out. First strike against him.

Second strike, arson investigators went in and said an accelerant was used: “We can see the patterns on the floor. We see glazed glass, cracked glass. That would be a sign of intense heat from an accelerant. There were streaks on the walls. There was burning underneath the linoleum tile, or tile in the house, which is the sign of an accelerant.” It was a classic arson investigation, and 30 years of experience by these arson investigators, right down the line, was at stake, and put him on death row.

Case gets to the U.K., and the U.K. says, “you know, you guys are using this evidence and it’s all wrong. All your assumptions are wrong. We’ve tested this. It’s more evidence created by oral tradition by arson investigators making assumptions, handing it down from one investigator to another, than real science.”

So they put a whole room under flames and found that you can crack the glass, which tradition has it was indicating an intense heat over 500 degrees, showing an accelerant was present—you can crack the glass by heating it up and taking a fire hose and spraying water in, and when the cold water hits it, of course it’s going to crack.

The pattern on the floor? How about new synthetic material that is required by the U.S. government so it won’t be so flammable that when it does catch, is an intense heat, and makes patterns on the floor, and up the walls. And they reproduced all those patterns.

Now, Ernest Willis, about a month ago or a little longer, was also in Texas. This was a Texas case. He was released from death row, exonerated, called innocent on exactly that same evidence. It was too late for Todd Willingham. They executed him in February, on exactly that same evidence. So it may be that’s the first that is provable, or at least highly suggestive. And it suggests to me that we’ve got a crisis in American justice that we’d better solve.

So what do the statistics show? We have had about 6,000 capital cases since the death penalty was reinstated after Furman v. Georgia, roughly 1976, in 38 states. Of those 6,000 capital cases, professor James Liebman, from Columbia University Law School, found, that there was a reversible error in 68 percent of those cases. California, 66 percent. A little better. If three-quarters of your medical diagnoses are wrong, how long would you stay in business as a doctor?

It doesn’t mean they’re all innocent, but Barry Scheck and Peter Neufeld’s a third were, absolutely innocent. The others are wrongfully convicted. Bad trials.

So we have a system that’s so fraught with error, at best we can give you a 50-50 chance when you have a circumstantial case.

Circumstantial case is yet another reason to look suspiciously at our criminal justice system. Circumstantial case asks the jury to build three walls of a room, and then fill in the fourth. In the case of Scott Petersen, built one wall, and fill in three.

You may be right, you may be wrong. It’s a guess. If you look in the dictionary, it says circumstantial evidence is having the appearance of reality, but not really being real.

Now, in many cases we have to have it. But what happens is that you have the talented, high-powered prosecutor whose career is built on the number of convictions. Prosecutor becomes governor. The defense attorney, who doesn’t have the opportunity to get the experience, is disbarred.

One of the problems in the system is that the prosecutor enjoys absolute immunity from prosecution. You can’t touch him. You can’t discipline him. Now, there have been a couple attempts, and if you look at the January 17th issue of New Yorker magazine, I don’t know if you’ve seen that, Frank. There was a prosecutor named Kenneth Peasley in Arizona that was disbarred. The first one in the United States, because it was found that he falsified evidence in a murder trial. Maybe it’s changing. I don’t think so, but maybe it is changing.

Throughout the country, lawyers are finally kind of rising, and I feel a rising tide of interest. All these things are relevant to you because of a Senate commission that has been appointed to study the death penalty, and a recent law review article in the Santa Clara Law Review has taken 52 recommendations from Illinois to solve problems with the death penalty in the criminal justice system, and found 82 of the same mistakes being made here in California.

So, we have mistakes in the criminal justice system, and its administration and application—the system is error-prone. But a lot of people still want it. Roughly 60 percent of the people in the country feel they still want the death penalty, although that number goes down to 50 percent when asked, would you also take life without parole? Now, that’s a little better.

But all the DNA exonerations that have been coming out have created a doubt that has caused people to think. They aren’t all innocent when they walk off death row, but what DNA has done has given us a little window, a little peephole, into the criminal justice system. And we’re finding, at least I did, that it doesn’t work well enough to render a judgment of death and play God.

So, if you take away the pillar of deterrent, if you look at the expenses, the economics of a trial like Ray Krone’s, you’ll find it costs about $2.5 million on average to have a death penalty trial—$2.5 million because of all the safeguards we have, like the appeals that are mandatory.

They will be on death row for an average of five years before they even get a lawyer and start their appeals here in California. Then they have appeals up the state’s judicial review, then up the federal review, so you have 640 to 50 people on death row in California—you can correct me on all these numbers, Frank, in a moment—and, what, 10 executions? So you hardly have a death penalty at all here, anyway. It certainly can’t be a deterrent.

Scott Petersen’s trial, according to the LA Times, I think was estimated at $6 million to $8 million. Was it worth it to you, who are running a deficit in California? Kansas, which has a $9 billion deficit, is debating the death penalty right now, and the number one issue is money. It’s just run its course. It’s too weighty, and get rid of it. We’d rather have life without parole.

Third reason, 110 countries in the world, every industrial country, with the exception of Japan, I guess we can call China an industrial country, has done away with the death penalty already. They’ve gone beyond. They’ve used the measure that the Supreme Court has laid down that the evolving standards of a maturing society in the United States have not quite reached the point where they think everybody wants us to do away with the death penalty. But they have in all of Europe, in 110 countries. We enjoy the company of Yemen, Iran, Iraq, the Muslim countries still sharing this little tidbit of criminal justice.

It’s unfairly applied across the states. Your position on death row depends on where you commit your homicide, and if you’re 18 in one state, you can go to death row, 17 in another state, 16 in another state. It’s just unfairly applied.

And, I came to the conclusion that, why beat around the barn? I’m too old, I don’t have that long to wait. Let’s do away with it.

There is a recommendation for a compromise and, frankly, it is the road that Illinois took. It enacted 82 recommendations to correct the system and eliminate these penalties. But it kept the death penalty for two heinous incidents, killing a policeman, and perhaps a pregnant woman.

I believe that it’s a temporary fix, and that eventually this road—which will be highlighted by finding someone who has been executed, an innocent person—is headed toward only one conclusion, and that is eliminating the death penalty in the United States. With that, I’m going to turn over the chair, the podium, to Frank Zimring, to correct all those things that I have said.

David Theroux

Thank you, Bill. You can see why he’s been so successful in communicating. Our next speaker is Franklin Zimring. Frank is the William G. Simon professor of law and director of the Earl Warren Legal Institute at the University of California Berkeley-Boalt Hall School of Law. He was formerly the Llewellyn professor of law and director of the Center for Studies in Criminal Justice at the University of Chicago, and he’s been a visiting professor at the University of Pennsylvania, Yale University, and a fellow at the Center for Advanced Studies in Behavioral Sciences.

Frank is a fellow of the American Academy of Arts and Sciences. He’s been an advisory member for the National Research Council Panel on juvenile crime. He’s also the author of numerous books, in addition to the one I mentioned, including American Youth Violence and Crime is Not a Problem: Violence in America. I’m pleased to introduce Frank Zimring.


Franklin Zimring
Law Professor, University of California, Berkeley; Author: The Contradictions of American Capital Punishment

And I have, as they say, good news and bad news. The good news, first. This is scheduled to go to 8:30. It’s five minutes of 8:00 now, and I’ve already sort of given Bill Kurtis a preview of coming attractions, saying it would be a real shame if we didn’t have time for questions, because this is the most unpredictable source of questions—this crowd—that you will ever see.

So we’re going to go a little past that, but the good news is, I’m going to go 20 minutes maximum. That’s the good news. The bad news is that David said I was a professor, and I’m going to sound like one for the next 20 minutes. [laughter]

But, in no sense unsympathetic to Bill Kurtis, we had somewhat different moral careers with the death penalty. My feelings that it might be a good idea did not survive the execution of Ethel Rosenberg, which was in 1953. And I’m older than I look, but I’m not that old. I was nine-years old.

Three Mysteries about the Death Penalty

What I want to do is talk about the political economy of the death penalty in the United States in 2005. That’s my sense of where this crowd is. I want to give a context to what Bill’s talking about, and I’m going to do it by posing three mysteries, and then giving my solution to thes e three mysteries. Each mystery is about a state in the United States. And since I’m local talent, my first mystery is going to be about the state of California.

Now, California has a huge death row, the largest in the United States. Since only the guys are in San Quentin, in fact we have about 650 people under death sentence, but the ladies are kept elsewhere. It’s huge.

Natural causes are the principal cause of death on California’s death row. About 650 people, we have been averaging since 1992 with our first execution, fewer than one a year. The last three years, we have been less than that.

Your timing is impeccable; we just had our first execution in three years last week, Bill, and that was the Beardsley execution. And a lot of sophisticated legal observers were waiting until the last minute there, figuring some Marin County Superior Court judge was going to throw a shoe in the machine. We were in shock the next morning, when a scheduled execution in the state of California took place.

Now, what’s the mystery about California? Well, I said 650 people on death row. Practically no one gets executed, and here is my mystery: It’s not a problem. Who worries about it in California? Not even prosecuting attorneys. Why? They get death sentences. They frame them. They put them on the wall. Everybody lives without any major sense of discomfort around a system that would seem to be a kind of a Charles Dickens complete send-up of a legal system.

Now, it is not that we are soft on crime in California. We have, at the moment, 250,000 people behind bars in this state. I know that’s not the prison population. That’s the prison population when you add the jail population, and the Los Angeles County Jail is as big as any two prisons in the state of California, and the California Youth Authority and a few juvenile halls, a quarter of a million people. We take crime control pretty seriously, and yet, it’s almost a comic opera, the death penalty in California, and nobody’s terribly worried. That is mystery number one.

Mystery number two is Illinois. You got the statistics from Bill Kurtis. They didn’t execute at all until 1990. Then, in the 1990s, all of a sudden they executed 12 people, and found 13, now 17, innocent defendants sentenced to death.

Now what does Governor Ryan of Illinois do in those circumstances? He empties death row. He issued commutations to about 160 condemned prisoners.

Now, here is the mystery with Governor Ryan. Let us assume—and I was almost 20 years at the University of Chicago, and I know that criminal justice system all too well, so this is a not-so-hypothetical case. Somebody comes to Governor Ryan and says, “Governor Ryan, we’ve got this new DNA stuff. We just found 250 innocent people in the Illinois prison system.” What does Governor Ryan do? OK, I’ll tell you what he does. He says we’ve got to have a blue-ribbon commission. I think he might do that. He says we’ve got to investigate how the prosecutor screwed up, what the police did wrong, what we’re doing with defense attorneys.

Now let me tell you what Governor Ryan doesn’t do. Does he empty the prisons? Are you kidding? No, no, of course he doesn’t. Why did he empty death row?

Well, first of all, why wouldn’t he empty the prisons? I’ll tell you right now, but then I’ll tell you again at greater length later. (I told you I was a professor.) He doesn’t empty the prisons because we need prisons. I’ll get back to that, I promise.

Now I’m going to tell you about the state of Massachusetts, and this is the wackiest mystery of all. Massachusetts, as you know, is a liberal state. They had a death penalty, but they never executed anybody, and then the state Supreme Court threw it out in 1984. And they haven’t gotten around to passing another one. Three or four years ago they came pretty close, but it failed by one vote, and everybody said, oh, that was fair.

And then, Governor Mitt Romney—now, for those of you as old as I am, this is one of George Romney’s sons—is elected a Republican governor of Massachusetts. Well, they had Bill Weld, they have a Republican every once in a while, just to keep things interesting. And just to keep things interesting, Governor Romney decided that maybe it was time that Massachusetts should have a death penalty, but a safe and good and clean death penalty. So he appointed a blue-ribbon commission.

Now, let me stop here and say that one of the things that’s absolutely astonishing abut the death penalty in the United States is that it’s a non-literate subject matter. Oh, I know, I wrote a book and Kurtis wrote a book, but governments don’t—except for law cases, there’s nothing written. That is, there wasn’t anything written until recently.

In the wake of the Illinois scandal, the blue-ribbon commission that Bill Kurtis was mentioning, was the first public document about the death penalty in 30 or 40 years in this country. But two years later, here comes the second. And the chair of this, the co-chair is a forensic scientist, and there is a law professor named Joe Hoffman at the University of Indiana, who is the only law professor I know in favor of the death penalty, who is not currently also a federal court judge. So, it was inevitable that he’d go to Massachusetts to do this.

And this committee report is the strangest document I have ever read on capital punishment. Because what they do is they say that the governor didn’t tell us to support capital punishment or to oppose it. It said that we should come up with a fair and reliable death penalty. And here is how they did it.

In the first instance, practically nobody is eligible for the death penalty. There’s no such thing as a felony murder rule. Merely killing a cop doesn’t do it; you have to be trying to somehow inhibit the justice process while you kill a cop. OK.

So, the first thing they do is they reduce by 95 percent the number of murders, which, because of the culpability of the crime, are eligible. They say we’re only going to make the worst of the worst eligible. But that’s Column A. You know these Chinese menus, where they say you can have one from Column A and one from Column B, and that’s your lunch? OK.

First off, you’ve got to be that culpable to be eligible for death. And then, guess what? Then, you have to be absolutely, certainly guilty. There has to be scientific, physical proof of guilt. Not confessions. Not eyewitnesses. Not that you told a snitch in jail about it. Not even the combination of confessions and eyewitnesses, and you told—no, no, something like DNA or a picture of your doing it, or something else.

Now, I’m looking through this report, and I’ve been invited to give a speech on it at the home campus of the guy who was chairing the commission, and I’m saying, well, jeez, what was their estimate of how many people are going to be eligible for this in Massachusetts? Oh, but there isn’t one. Maybe nobody. And they don’t care. [laughter]

Now, here’s the mystery. How does Governor Romney feel about this report? Answer: he’s delighted! He thinks it’s wonderful. He says, “Thank you, fellows, and now the Legislature’s going to—“

Now, here’s my hypothetical. (Remember, I’m a law professor. I’ve got to do this. I do it for a living.) What if they came to him and they said, “Governor Romney, I know this wasn’t in our charge, but we’re really worried about the forensic evidence in the criminal justice system. So we don’t think you should send anybody to prison in Massachusetts unless there’s physical proof that they’re guilty of the crime. Not ’beyond a reasonable doubt,’ I mean real physical proof. None of this plea-bargaining stuff. None of these confessions.”

I want to ask you one question. Would Governor Romney be delighted with that? Well, why was he delighted with the capital punishment report?

OK. That was a long windup, so here’s a short pitch. This is what’s going on. And it’s not just going on in the United States. We’re just a little behind the time. It turns out that all over the world, abolition of capital punishment is a two-stage process. First, the execution of prisoners ceases to be of any importance or necessity in crime control. That happened in the United States at least by World War II.

OK, that’s just stage one. We stop needing it. Then, we debate. It’s not that we then abolish it. It’s not something that happens the next week. Then we have a long series of debates about notwithstanding that we don’t need it, do we want this practice that we don’t need? That’s the debate that we’re having in the United States now. That’s the debate that the British and the French and the Germans had. The Russians didn’t exactly have a debate. They wanted to join the European common market, so the Europeans told them, stop executing prisoners. They said fine. So that wasn’t a debate. [laughter].

Now, there is one thing about capital punishment that everybody agrees on in contemporary American discourse. George W. Bush agrees. And that is that we don’t really need the penalty. Some of us want to have it, and some of us don’t want to have it. But we all know—and this is the reason why there’s no scandal in California, even when we don’t have executions, because we have those 250,000 people in jail.

We sleep pretty comfortably because the death penalty we don’t really have, we all know we don’t really need. But here, in a liberal and ambivalent society, and one that doesn’t really trust government all that much, here’s the question. If we all know that we don’t really need the penalty, what’s the permissible margin of error? How many mistaken executions will it take?

I think the answer to that should be any at all, but the reason that’s true is because of the lack of the necessity of the penalty. That’s the important context. This is, in essence, a symbolic punishment. One that makes us feel good, but one that we all know we don’t need.

And then the question is, what’s your theory of government? How much do you trust it? How much do you rely on it in individual circumstances of high matters of public fear, and great matters of public anger? And if the answer is you don’t trust it very much, and we don’t need the penalty—well, I wrote a book, which, although not on acid-free paper will probably be around a lot longer than I am, and I thought about that. That’s something that happens when you’ve been in this business a long time.

And what I said is, that for reasons of political economy, this penalty is on its way out in the United States. That after the experience of the 1990s, the no-win 1990s, and with the fact that the larger the number of our executions, the larger our conflicts, we’re really now much closer to the end of executions in the United States than we were 20 years ago.

I hope I’m right, because I’d like my grandchildren to be able to hold their heads up high, or else maybe they’ll have to change their name from Zimring.

David Theroux

So, as Frank said, we have time for questions. So, the lady right here in purple.

Audience Member

This is for both speakers. Do you have any comment on the Austrian Parliamentarian who came out last week to strip Arnold of his dual-citizenship because of not commuting Beardsley’s execution?

Bill Kurtis

I’m from Chicago, so I don’t have to answer that. Frank?

Franklin Zimring

I have a comment, and it is not a short one. I want to tell you about an absolutely miraculous transformation that took place in Europe, and it took place over a very short period of time.

At the end of World War II, every major power in Europe was an executing country. Over the previous 200 years, the number of executions had gone down. And by about 1950, they didn’t need the penalty anymore. But that isn’t to say—public opinion in Germany, and in Austria, and in England and in France was identical to public opinion in the United States now. Murderers aren’t very popular.

You then had, over a 30-year period, the dullest possible process of the abolition of the death penalty. All the arguments were about deterrents and brutality and this and that. It sounded like a high school debate manual in 1927. Each country did it as if they were inventing this process, even though one country after another abolished.

The losers in World War II abolished first, because they had a lot of political change to do. The Germans did it in their constitution in 1949, the Austrians did it when the Socialists joined the government in 1950, the Italians were wonderful. They had actually abolished once before Mussolini. Mussolini brought the death penalty back. And then the Italians did two things when Mussolini was routed. The first thing they did is they hanged Mussolini. [laughter] The second thing they did was abolish capital punishment. [laughter]

Now, this isn’t as inconsistent as it sounds, because that’s two ways of rejecting the prior regime. [laughter]. Indeed, it happened again with the fall of the Iron Curtain in 1989. You had some extraordinary process. And the Romanians must have studied Italian history. What they did is they shot Mr. Ceausescu, Mrs. Ceausescu, a few of the Ceausescu kids, the entire staff, and the next week they abolished capital punishment. [laughter].

OK. But nobody says anything interesting about this, because I am getting to the Schwarzenegger point. Then the last country, the last major country in Europe, abolishes and stops executing. That country is France, and the year is ’81. What took them so long? De Gaulle. It happens that the Left has to come in to sort of give the coup de gras in all these countries, even though when the Right then comes back in, they never reinstitute the death penalty. It’s always done with two-thirds of the public saying, that’s ridiculous, and it always sticks in democracy. It’s astonishing.

But now comes the incredible part of this. All of this time after World War II and in the ’50s and the ’60s and ’70s, when there was a debate about capital punishment, nobody said a peep about human rights, nobody said anything about dignity or limits of government, or trusts or anything like that. Boom! The French are the last to abolish. Then, the next year, in Protocol 6 of the European Commission, all of a sudden, the death penalty becomes a moral orthodoxy, and the reason for it is, it must be abolished because limits of government and human rights.

Now, where was the human-rights factor when they were debating this country by country? When Great Britain had the only document about capital punishment that you can read that has any intellectual weight—a royal commission report that was issued in 1953. Now, you remember that in the 10 years before 1953, there was this war they fought with these guys who were wearing—you remember the swastikas and all that? And I believe that today is the 60th anniversary of the liberation of Auschwitz.

Well, yeah, so you’d think, they wrote 700 pages on state execution, the state policy, and maybe they’d say something about that. They did. One thing, in 700 pages. They had 150 pages on methods of execution, and the reason they did is that one of the things—they were hanging people in Britain, and there were people that thought that that was sort of awful. So they said, well, there are some problems with that, but they’re working on getting the techniques down. And they said, besides, they said, some of the alternatives, like for instance lethal gas, look what happened there recently. That was it. That’s all they said about the Nazis. And yet, you have these two things going on that don’t make any sense.

One of them is, the death penalty is disappearing from a continent that has just gone through World War II, where they had not one, but the two great executioners of world history. Because I’m not sure that Adolf Hitler’s in first place. There are an awful lot of people who will put money on Stalin, because he had a bigger population to terrorize. But they say not a word about it until the last domestic abolition takes place, and then all of a sudden, it’s human rights and limits of government.

The reason I mention that is that we’re going through something very much like this now. At this point, there are two things that are weird about the Europeans, and your comment brings them both to mind. Number one, the death penalty is a hotter political topic in Europe in 2005, when nobody’s been executed on the continent since 1977, than it was in 1976. Back when we executed Gary Gilmore—he was the only person executed in the United States that year—the French guillotined two agricultural workers, both of very dark skin, who happened to murder their girlfriends. But all this human rights stuff is only now.

Now, oddly enough, the American discourse on capital punishment, so far has almost no limits of government, human rights, dignity or necessity dialogue. It’s almost as if it’s impolite to put this penalty in a political context until it’s gone. But then it’s obvious! Maybe what we need is psychotherapy. [laughter]

Bill Kurtis

How about this lady right here?

Audience Member

Yes, I came into the room already compelled about this issue. Your arguments are very compelling, even though I didn’t need more compelling.

During the gubernatorial recall election, the death penalty came up in the debate. And Tom McClintock, who was running against Governor Schwarzenegger, said that he believed in the death penalty, and that people would argue that, with the new DNA evidence revealing that some people had been put to death wrongly, that the DNA techniques now actually make the death penalty safer. And so he—that does not counter his feeling about it. I’d love to hear from both of you how you would counter Tom McClintock’s argument there. Thanks.

Bill Kurtis

Well, there are a number of people who do make the argument that, if you can prove somebody innocent, you can prove them guilty beyond a shadow of a doubt. But you have all the other arguments. There’s essentially no reason for the death penalty. And you go down the line, from a deterrent, to the international community, to being too expensive, to unfairly applied. All the pillars are gone.

So, what we have, if I can reflect Frank’s comments, are politicians who are acting strong on crime, and don’t have the courage to stand up and say, there’s no reason for the death penalty anymore. Let’s take a step forward and rise above “an eye for an eye.” For, as Gandhi said, if we have an eye for an eye, the whole world will be blind.

Franklin Zimring

I just want to point out that that’s really what the Massachusetts Blue Ribbon Commission took seriously, but they took it seriously at a price. It turns out that only about 10 percent of the exonerations in death cases have been DNA exonerations.

So, what the Massachusetts Blue Ribbon Commission did. Remember, first of all you had to be the worst of the worst kind of criminal. But that didn’t make you death-eligible in Massachusetts. Then, it has to be physically certain that you did it.

The problem is that the price you pay for that is that all the worst killers go off without the death penalty. What you’ve done is warp the culpability standard by making sure that whenever it can’t be foolproof in its application, you’re not going to have it.

I mean, what you have to ask McClintock is, OK, that means in 90 percent of the cases in which juries give death now, you’re not going to have that kind of evidence. Are you going to give all of them a pass? If the answer to that question is yes, then what you have is a penalty which is not only unnecessary, but morally trivial.

If your answer is no, you’re still taking the same risks. So that, in essence, it becomes a dilemma. Will we ever live in a society where there is always adequate proof when the crime has been terrible? Probably not.

It turns out that police shootings take place at a distance. So do robberies. Rapes don’t. Rape, killing, happily, are very low-incidence phenomena. So, it would be nice if we lived in that kind of world, but we’re pretty clear that we never will.

David Theroux

The gentleman right there.

Audience Member

To Mr. Kurtis: In the 1950s, the Rosenbergs were executed in New York. Here in California, Barbara Graham was executed, all of those on uncorroborated accomplice testimony. Would you please speak about the death penalty being inflicted on uncorroborated accomplice testimony, and in view of the fact that it ought to be common sense that, if a person is apprehended in the commission of a crime, he might think that his only hope is to put the blame on somebody else?

Bill Kurtis

And that’s exactly what happens. And many of the people on death row are there because they didn’t necessarily pull the trigger, but because their accomplices, whether it’s one or two, suddenly turn state’s evidence and finger them. That basic unfairness is another reason why you shouldn’t have the death penalty. You’re absolutely right. We’re looking at a lot of uncorroborated testimony. A lot of hearsay that gets in, a lot of basically non-evidence, in trials all around us.

Let me take it a step further. We’re talking about the death penalty. In many ways, it’s a red herring. Because, as long as we focus on the death penalty, it’s the tip of a big triangle. That triangle is the criminal justice system. It’s the same kind of trial, the same mistakes that are made in so-called lesser trials, that have given us two million population in the United States, largest in the world.

The dirty little secret of the legal profession and the criminal justice system is that we have to do something about that, too. And what I maintain—get rid of the death penalty so we don’t have to talk about it anymore, we stop focusing on it, and then let’s get to work on that.

The good news is that Illinois, Jim Thompson, the former governor, you’ll recall, is now heading up a commission to completely rewrite the criminal code. There are 270 pages. There are laws that are so redundant. Why? Because every time a legislator has a crime, he wants to pass a law and stick it in the criminal code. They don’t know what’s in there. So they’re going through, rewriting it.

I predict that after your death-penalty commission by Senator Burton, you’re going to move into rewriting of the criminal code. And I hope all the states take a look at it. But you’re absolutely right.

David Theroux

How about the gentleman in back?

Audience Member

Clearly, governors have an important political role in the death penalty, and governors have been known to run for president, and as part of their campaign, make decisions about prisoners on death row. Clearly there’s some political calculus behind it that this carries an important message in the national political decision-making. So I’m interested in your views on what that’s saying about the nation’s consideration of the death penalty, when it becomes part of the presidential campaigns.

Bill Kurtis

Let me jump in on this for just a moment. I may be a little off in answering this question, but this gives me an opportunity. President Bush, of course, didn’t—be it any sentence, or pardon anybody, or issue any clemency—because he was advised, as he said, that he reviewed each case that came before him.

If you will go to a blogger address, either, and I could be wrong in that address, but there’s another one. It shows the reviews that were written to advise him. And those reviews consisted of the prosecution’s side ignoring most of the defense arguments to save the life of someone on death row. They were rarely longer than a page. Most of the time they were three to four paragraphs, to allow to governor to take in the information. [laughter]. They were written by Alberto Gonzales.

David Theroux

Anything to add to that?

Franklin Zimring

Well, I just want to say that a funny thing happened between 1967 and 1980. And that is that, as the federal courts got involved in the death penalty process, executive clemency—and that isn’t a legal decision-making process. That’s really a kind of descendent of the divine right of kings. That’s the executive—doesn’t have to give a reason yes, doesn’t have to give a reason no. Sometimes it’s constrained. We pass ballot initiatives on what the governor can and can’t do in clemency in California.

But the fact is that executive clemency disappeared in this country. It used to be about 15 percent of executions in 1960, after the reinstatement of capital punishment, it is simply that gubernatorial offices don’t function in that way. It is only early in the 21st century that some people are talking about bringing that back as a reality.

So I don’t think you just point the finger at George Bush or famously, of course, at William Jefferson Clinton, who—Arkansas has a fair amount of capital punishment, doesn’t have a very sophisticated bar, but the Ricky Rector case, I believe that was his name. This was the fellow who, they asked him if he’d like a candy bar and he said, no, put it away, save it for afterwards. That was for after the execution.

These are problems, but these are problems, really, in terms of executive clemency, that deal with a completely disappearing phenomenon, and that is elected officials exercising leadership on the death penalty. In a way, they depend on the courts. They complain about the courts, but God, they’re glad they’re there, because that way they don’t have to take the flack for it. Welcome to California.

Bill Kurtis

But let’s consider a moment George Ryan, pharmacist, politician for 25 years. Campaigned on the death penalty. Suddenly he comes to grips with a problem. He commits 164 inmates on death row to life without parole. He pardons four in addition to the 13, so there are 17 out. I think we have an 18th now. That is either the most incredible act of courage, for which he was nominated for the Nobel Prize, and feted across Europe, driven past the Coliseum with the lights turned on for only the third time in its history since Julius Caesar, they say. [laughter].

Franklin Zimring

They had electricity then?

Bill Kurtis

[laughter] Enjoying addressing the entire Reichstag, or it was, as some accused him, an act of political expediency, trying to save himself from being indicted for corruption when he was the Secretary of State, for which he will be tried in six months.

I happen to paint him as the hero of the death penalty, and believe that he did it out of the guts that he had to do it.

Audience Member

Do either of you have the sense that the tide of opinion is changing in the United States? We’ve seen that the majority seem to be in favor of the death penalty, but given all of these facts, which we would like to think that people would appreciate, do you have a sense that maybe the tide of public opinion is changing?

Bill Kurtis

I’m interested to hear from you, Frank, but let me go first, because I have—notice how I pause in between microphones. That’s the professional in me. [laughter]. That’s so you can still hear. And my cameraman is here, and my daughter, I hope you appreciate that.

I have kind of gone around the country in this book tour, so it’s a kind of survey that you’re forced to take. And it’s easy for me to say I feel something changing. Today I addressed the Rotary Club—twice—of Fresno, California—and they were great. They seemed to be open-minded. They seemed to be on a fence, and they seemed to be genuinely receptive to information. All this is is a report. These are the figures that are out there, and it gives you reasons to think.

So, you have death penalty now being reconsidered in New York, in Kansas, because it was declared unconstitutional in both states. Here in California. Indiana is going through some nice commissions. Texas is doing battle with the Supreme Court on a variety of things.

I feel a rising tide that may reach a tipping point, to use Malcolm Gladwell’s, and spill over. That can come really fast if someone else other than Scott Peterson is found responsible for that crime, or if we find our first innocent person truly executed that we can pinpoint with DNA. I think that’s really going to convince a lot of people.

On the other hand, maybe I’m naïve. I know this feeling goes very, very deep, and the process of education is long and hard. And a lot of people have been in it long before I jumped in, and I can look at it with happy eyes and probably not see the truth, so. But anyway, that’s my feeling.

Franklin Zimring

Let me give you some confusing statistics. (I’m a professor.) In the first instance, at every point in abolition that we’ve studied, all across Western Europe, and in Australia and Canada, public opinion is two-thirds for the death penalty when it’s abolished. And, in fact, there are more people in England now—they haven’t had a death penalty for 35 years—that support it than in the United States.

What the United States has is support for the death penalty that may be more intense. There’s not a greater percentage of people: Murderers are very unpopular in most countries; yeah, they’re not very nice people. And, what you have in the United States to begin with is tremendous ambivalence.

In 2000, for instance, 64 percent of the population supported the death penalty, and 52 percent of the same population supported a moratorium on any executions. Those were two majorities, and there was a lot of overlap of people who supported both A and B. And that’s a pretty accurate picture of the United States.

The real question about American political opinion is, how deeply are the pros pro-capital punishment? Because it’s no problem at all abolishing a death penalty if 63 percent of the population wants one, but they don’t want one very much, and they’re willing to give political leaders grudging support, when they know that what they’re doing is essentially right. That’s what’s gone on all over the democratic world.

It may be different in the “execution belt,” because it may be that the support for executions down there is from people who really mean it. This could be tied to an attraction for vigilante traditions in the United States, which is I think probably the most controversial section of the empirical work in my book.

What I’m going to suggest is going on that is really changing is not that 63 percent support the death penalty. I think that will be pretty stable. But, as the intensity of pro-death penalty commitment decreases and the ambivalence about the penalty on the part of its supporters increases, what happens is the moral high ground will be cut away from support for the penalty, and there will be a willingness to tolerate political leadership from political elites, that will push us toward some very bizarre and dishonest intermediate steps.

A moratorium is abolition on the installment plan. You do it because you say, well, let’s try something for five years. We can always go back. And then five years later you say, well, of course we abolished back then, didn’t you hear? I mean, this is all—nobody is willing to come out of cover.

Public opinion is tremendously important, but it is the intensity of support, not the breadth of support, that is the lead indicator on whether we’re going to catch up with the other kids on the block.

David Theroux

OK. Two more questions. How about right here?

Audience Member

We’ve moved from public stonings to hangings to all of this knowledge, now. What do we do? I have a sense that some people would say that if we take away the death penalty, then more people are getting away with crime. How do you address that?

Bill Kurtis

It’s one of the best points raised. And I think that it goes to the heart of people’s feelings. They are afraid that if they’re not on death row, spending 23-and-a-half hours a day inside a six-by-eight foot cell, alone, with loneliness, thinking about that crime, getting three showers a week on death row, then somehow they’ll be in the general population, perhaps kill another inmate, or will be having it too good.

I was the guy who broke the Richard Speck case with the tape. He did have it too good. In 1972, he and Charlie were saved. And so he had the run of the entire prison, and those tapes showed he had such control within that prison: he was able to do a videotape where he was snorting a mountain of cocaine, having sex with his lover for an hour and a half, on videotape, to sell to a jail-sex-tape ring. They changed the entire penal system in Illinois because of that. It’s always amazed when—

Franklin Zimring

Now you want to reform it! [laughter]

Bill Kurtis

Yeah, really. I’m always amazed at what a little sex will do, and how it will move the public opinion.

Franklin Zimring

That and the cocaine.

Bill Kurtis

That’s right. But, I forget exactly where I was going with that. [laughter]. But—I just can’t get that image out of my head. If you’re ever in Chicago, we’ll have drinks and I’ll show you the whole hour and a half. [laughter].

One of the proudest things I’ve—

Franklin Zimring

We’ll have the drinks, just don’t show the video.

Bill Kurtis

[laughter]. They were accusing me of selling the tape myself into the sex ring and making a million dollars, and I haven’t sold it to one person. I just—other than—no. [laughter].

But, down to that basic feeling, it comes from within. One, it makes us feel good when we hear that somebody gets the ultimate punishment in the death penalty because that’s a natural feeling. We need to rise above that and reason it out, and once we do, get a hold of ourselves and have some information on why we can strike it back. But there’s that fear.

So, what we have to do—and this is good for the California hearing—is, one, you kill the death penalty. Take it off the books. But, at the same time, you address the problem in the penal institution.

Where do the people on death row go? Do they go to the general population, and the exercise yard, and the television sets? No one wants the most evil among us to not be punished. Most people would put them out cracking rocks again.

And I do think that you have to reform the penal system for a special area. If you have life without parole, you’re going to have fewer of these “gimmes” and perks, perks used to control the population. But you must be punished. And, unless people can be assured that they’re never going to get out, and they’re going to get adequate punishment, we’re not going to have the support we could have.

Audience Member

The former slave states seem to be where the predominant amount of executions occur, so let’s talk a little bit about race and racism in connection with this whole debate.

Also, Bill, you put your finger on something, I think, that’s critical. You talked about the death penalty being like the pyramid. And, truth be told, the cases that are most closely scrutinized for error are the death penalty cases. So, once we take the lid off the rotten criminal justice system, and you throw out figures like one third, like Barry Scheck says, the death penalty cases are wrongful convictions, let’s be real. We’ve probably got 50 percent of the two million inmates in this country, possibly in the wrong place. So, discuss that and tell me whether those figures are too grand.

Bill Kurtis

Well, they may be strong. I would hate to believe 50 percent of the two million people are truly innocent. In my 30-year career with CBS, I couldn’t do a crime story without having the entire population write or call, saying, well, it’s full of innocent people. Now, it looks like they were telling the truth, and I was an idiot for not believing them.

I don’t believe it, and why don’t I believe it? It’s because of my faith in the system. Even though I think it’s broken and needs to be fixed. So I can argue against myself, I guess. Maybe you can help me.

Franklin Zimring

There are two completely different dimensions on which you have to judge a criminal justice system. And the United States, particularly north of the Mason-Dixon line, gets different grades on these two different dimensions. The first one is, how good is the machinery at controlling crime? And the answer is, pretty good.

That institutionalized population is up sevenfold. It’s probably a little too high now. When we get enthusiastic about things in the United States, we really get enthusiastic about it. You may have heard about the War on Drugs. [laughter]

On the other hand, what it has meant is that the system is—the playing field is so tilted now, that it’s very difficult to be a street criminal without enormous resources and stay out of jail. And that, a lot of people think, is very good news.

Now the question is, how good is the system at sorting through degrees of guilt and making fine-grain decisions on punishment? Lousy. How much of a problem is that? Well, until it’s a member of your family, not such a big problem.

And I think that you can come to a couple of very practical kinds of decisions, around what I think are some inherent limits on mass justice in a society like ours. One of them is that there are certain kinds of extraordinary powers that you don’t want to give to government. I think death is one good example.

We have things—don’t worry about people enjoying prisons in California, Bill. I’m going to take you to Pelican Bay or the Corcoran Facility.

We have now a sort of Gulags-squared institutions, which exist mostly for general deterrence within the prison population. This is why we have such well-behaved prisoners in California. Everywhere else, the problem again is that they’re manifestly unjust and they go to far.

We can cut the extremes of the system. Can we ever really make it a system in which 10 guilty men are going to go free before one innocent man is convicted? No. No, we’ll have to change the nature of the country, not just the nature of the system, before that happens, and it probably won’t happen.

All the more reason to worry about excessive governmental power, because the amount of support for the use of very substantial governmental powers—because of the nature of the American crime problem—is with us now, and that isn’t going to be something that’s going to change as a different wind blows.

David Theroux

Just one comment, in reference to Frank’s mention on the War on Drugs. If anyone is interested in looking seriously at the issue of incarceration rates and the War on Drugs, we have a book called Drug War Crimes. It came out late this past year, and there are copies upstairs. I think you’d be quite shocked by what you find from that.

I want to thank everyone for joining with us this evening, but I want to especially thank Bill and Frank for their fabulous presentations. The books are extremely important. If you don’t have copies, I encourage you to get both. There are copies upstairs. They’d be delighted to autograph them for you. This issue’s not going away. It is at the top of this pyramid, and the criminal justice system is quite in a shambles, to say the least.

The Institute, again, holds these events on a monthly basis, roughly, and we hope that you’ll be with us next month. Thank you for joining with us. Good night.


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