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Former Prosecutor Solomon Wisenberg Discusses the Merits of the Death Penalty
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Former prosecutor Solomon Wisenberg joined Law Chat on Wednesday, June 14, to discuss the death penalty. Wisenberg clerked for a judge on the Texas criminal court of appeals, where he had exclusive control over death penalty cases. Law Chat is presented by FindLaw. CNN provided a typist for Wisenberg. The following is an edited transcript of the chat.
Chat Moderator: Polls show that most Americans support the death penalty. What, in your opinion, has triggered this new debate over it?
Solomon Wisenberg: I think it's a combination of some troubling new studies, the exoneration of some death row inmates through DNA evidence, and the media interest in stirring up controversy.
Chat Moderator: Legally, what are the main problems with the death penalty system?
Solomon Wisenberg: I think that the main problems are lack of adequate counsel at the trial court level and inherently unreliable evidence at the trial court level, such as single eyewitness testimony and jailhouse snitches. You have to remember, however, that because the United States has so many constitutional safeguards set up for all criminal defendants, and death penalty defendants in particular, that more mistakes are caught.
Question from Pame5Ashe: Is the death penalty really working to deter crime in this country, or is there a bigger issue at hand?
Solomon Wisenberg: Well, I think the death penalty, properly administered, is unquestionably a deterrent. You asked as administered "in this country," and that is a tougher question. I realize that the statistical studies are all over the map on this issue. But I think that if you set up a system of endless appeals over years and years, you'll lessen the deterrent value.
I get concerned when the legal advocacy groups responsible for the endless appeals claim lack of deterrents. It seems to me that they partially contribute to the problem. I realize that recent legislation has worked to streamline the process. It seems to me that we have to work to make the entire process more efficient, but at the same time make it as absolutely reliable as possible, so that people get proper representation, and so that no innocent person is convicted.
Question from Mango: Why is Vice President Gore afraid to emphatically and directly take a firm stance on the death penalty?
Solomon Wisenberg: This is one of the many ironies of the death penalty debate. Traditionally, Democrats have been very much hurt by being perceived as soft on the death penalty issue. Thus, many politicians like Gore are still scared off by appearing to be too soft. On the other hand, Republican governors can afford to move leftward, so to speak, on this issue. Witness the recent actions of Gov. George Ryan of Illinois, and Gov. George W. Bush of Texas.
Question from Chicago: What is your opinion of efforts by the states, such as Florida, to speed up the process of the death penalty in limiting appeals to five years, when the average time for exculpatory evidence to emerge in death penalty cases has been seven years?
Solomon Wisenberg: In general, I am in favor of speeding up the process, because it aids in deterrence. However, I'm only in favor of this if the proper safeguards are in place. We have to insure that competent counsel represent these people in the first place. Then we have to insure, by statute, that the evidence is reliable. We can do this, for example, by insisting that nobody be convicted for a capital offense on the basis of one eyewitness' testimony alone.
We can also do that by insisting that no capital defendant be convicted on the basis of jailhouse snitch testimony alone. In general, however, I am unimpressed with exculpatory evidence that turns up seven years after the conviction, unless it involves DNA evidence. In terms of worrying about the failure of prosecutors to turn over exculpatory evidence, it seems to me that we can insist that within an appropriate period, an open file policy be enacted.
Question from etsuVol: How much stock do you put in the theory that the death penalty actually increases violent crime (the brutalization theory)?
Solomon Wisenberg: I don't put much stock in it. In fact, I don't put any stock in it.
Question from Guyin40s-CNN: In the United States, where the average convicted murderer spends 8 to 11 years in prison, does that not devalue innocent life more than any administration of the death penalty does?
Solomon Wisenberg: Absolutely. I think that it is very important that society makes the statement to killers - who, of course, are the number one original devaluers of human life -- that we cannot tolerate this behavior. I believe there are all kinds of detrimental consequences that flow from failing to deal adequately with murderers. These are the consequences that are typically difficult to measure or prove with hard scientific data. But I believe that you send the wrong message to law-abiding citizens when you tell them, in effect, that the entire system is quite happy with letting a cold-blooded murderer do 11 years in jail.
Question from Chicago: Don't you set up a logical fallacy, though, when you say on the one hand that the system works to prevent innocent executions through the appeals process, and then on the other hand say you'd like to limit those appeals?
Solomon Wisenberg: I don't think it's a logical fallacy. I think that it may be a fallacy in effect under the system as it currently works, which is why I want to see a process that is streamlined, but highly reliable. I'm obviously not talking about 33 days from arrest to execution, which we had with the murderer of Chicago Mayor Anton Joseph Cermack. But, I believe you can create a very reliable system, which doesn't take an average of nine years. I can tell you from my experience clerking on the Texas Court of Criminal Appeals, which is the Supreme Court in Texas for all criminal cases, that I only saw one defendant in all of the cases I was familiar with who was arguably not guilty. That person was freed, though not on direct appeal.
Chat Moderator: There is increasing international pressure to eliminate the death penalty in the United States. Will this ultimately have any effect on American policy?
Solomon Wisenberg: I hope not. Last time I looked, we were still a sovereign nation, free to decide our own policies. Total one-worldism is yet to arrive, thank God.
Question from Mike: The old ethical question: Does the fact that a majority here support something always justify it? I'm thinking past examples like slavery, pollution, imperialism. Then the factor of global condemnation, that America is an anomaly in its support of it. Do majority and morality always coincide?
Solomon Wisenberg: Absolutely not. If it did, President Clinton wouldn't be in office, for example. It has never meant anything to me that a majority of Americans support the death penalty. What has concerned me is courts overturning death penalty statutes on unsound constitutional grounds. The fact is, the death penalty in general is clearly not unconstitutional under the federal system. But if it were unconstitutional, it would be irrelevant that a majority of the citizens support it. That's what the Constitution is all about, or rather, it's one of the things it's all about -- ignoring majority will, where appropriate.
Chat Moderator: Do you have any final thoughts for us today?
Solomon Wisenberg: I would like to say that as part of our effort to be absolutely reliable in administering the death penalty, we do need to pay close attention to racial questions, and make sure that the death penalty is administered in a non-discriminatory manner. It is very clear to me that the framers of the 14th Amendment were very concerned about unequal application of the laws to African-Americans. Thus, we owe it to ourselves, as a Constitutional matter, to make sure that the system is fair for all Americans.