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How do you plan to up the pressure politically?
I think the pressure is increasing just because of the concern that more and more people are having about the way in which the death penalty works in practice. DNA cases have gotten the attention of a lot of people in this country, and DNA has proven over and over and over again that the criminal justice system has convicted the wrong person. There's no reason to think that's happening any less in death penalty cases than it is in other cases. Quite to the contrary, the death penalty cases are usually tried with so much emotion. There's so much political gain on the part of the prosecutors and the judges caught up in those cases that there's actually a greater likelihood of mistakes.
Are you heartened by the Supreme Court's decision, prohibiting the execution of the mentally retarded?
I thought Justice [Sandra Day] O'Connor might rule the way she did, but it was surprising and delightful that Justice Anthony Kennedy joined the majority, providing a solid six-vote decision. It's remarkable that about 15 years ago, not a single state prohibited the execution of the sentencing to death of the mentally retarded. Now, according to the court, there's a "national consensus" against the practice. What is scary is the dissent authored by Justice [Antonin] Scalia and joined by Justice [Clarence] Thomas and Justice [William H.] Rehnquist. George W. Bush says that Justice Scalia and Thomas are the justices he most admires. If he can appoint two more like them we will live in a different country than we do today.
In a ABC/Washington Post poll, support for capital punishment dropped below 50 percent when respondents considered an alternative sentence of life without parole. What do you make of that?
The death penalty has really been a result of the war on crime and the demagoguery and cynicism with regard to crime issues on the part of politicians. After Dukakis was so effectively beaten ...
Yes, flayed with the Willie Horton ads. After that, then-Governor Clinton came back to Arkansas and made a spectacle of putting to death a brain-damaged person right before the New Hampshire primary in 1992. I think, unfortunately, the message that many politicians read out of that was: To show that you're tough on crime, you have to be for the death penalty. Not only do you have to be for the death penalty, you have to be for the death penalty in every conceivable crime.
What makes you think that politicians will ever roll back the death penalty?
Unfortunately, we live in a time when the politicians follow the people instead of leading them. What's needed is leadership on this issue -- people who will talk sense about crime and punishment.
On a scale of one to 10, with one being not likely and 10 being 100 percent likely, how would you rate the odds of accomplishing your death penalty goals?
I don't know. Too much of the answer depends on things that are beyond our knowledge. We don't know, for example, when there will be a highly publicized case of an innocent person who's already been executed. I think what we have to do is be sort of like the people on the Underground Railroad, trying to get individuals across to safe passage one at a time by devoting our legal skills to that. At the same time, we have to raise these broader issues and hope that society will decide eventually to turn its back on this punishment.
Do you agree with those who said that televising Timothy McVeigh's execution would have spurred revulsion to the death penalty?
When we had public executions, which we had in this country up until the 1930s, they were carnivals. Now we have private executions, and very often they're carnivals, except that people don't get the voyeuristic pleasure of actually watching the execution. But my personal view is that it wouldn't have much effect. I think that this society has an interest in violence that is a bit unseemly. And if you look back at the pictures of people being lynched or look back at the public executions -- like the one in Owensboro, Ky., where 20,000 people came -- it's disturbing to see people there with their whole families. You've got mom and dad and the children, and they're all there smiling like they're at a picnic. Americans see so much death and violence on television and in the movies every day that we've become totally desensitized.
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