“The Death Penalty Today: End It, Mend It, or Defend It?” July 21, 2006 Transcript Recent exonerations of people on death row have led to renewed debate about the constitutionality and application of capital punishment. The Constitution Project, together with the Federalist Society and the Pew Forum, held such a debate on July 21st at the National Press Club in Washington D.C. The panelists were: Hon. Sam Millsap, former District Attorney, Bexar County, Texas, who prosecuted the Ruben Cantu death penalty case; William G. Otis, former Special White House Counsel for President George H. W. Bush; former chief of the Appellate Division for the US Attorney's Office for the Eastern District of Virginia; Hon. Kenneth Starr, Dean and Professor of Law, Pepperdine University; who has represented death row inmates in Virginia and California; Bryan Stevenson, Executive Director, Equal Justice Initiative of Alabama; and Professor of Clinical Law at New York University School of Law. The moderator was Virginia Sloan, President, the Constitution Project. ________________________________________________________________________ VIRGINIA SLOAN: Good afternoon. I'm Virginia Sloan and I'm president of the Constitution Project. This is the fourth in a continuing series sponsored by the Constitution Project, the Federalist Society and the Pew Forum on Religion & Public Life, and I'd like to welcome you on behalf of all three organizations. The Constitution Project is a bipartisan, nonprofit organization that conducts public education and research on controversial constitutional law and governance issues. These issues include our system of checks and balances, the balance between liberty and security after Sept. 11, judicial independence, war powers, criminal sentencing and the constitutional amendment process. The Federalist Society is a group of conservatives and libertarians interested in law and public policy. It is founded on the principles that the state exists to preserve freedom and that it is the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks to promote an awareness of these principles and to further them through its activities. The Pew Forum is part of the Pew Research Center and its mission is to provide timely information on important issues at the intersection of religion and public affairs. The Forum is nonpartisan in nature and does not take positions on any topics. Though neither the Pew Forum nor the Federalist Society takes positions on policy issues, the Constitution Project does through our bipartisan committees of distinguished and expert Americans. We have available for you out front our consensus recommendations for reforms issued by our Death Penalty Initiative, which consists of both supporters and opponents of capital punishment, all of whom believe that the system is badly broken and that the risk of convicting and even executing the wrong people is too great. The death penalty is certainly a hotly contested issue, and in recent years Americans have witnessed a parade of exonerated individuals, including 123 who were sentenced to death. The number of death sentences is down, as is the number of actual executions. Support for the death penalty has decreased as Americans grow increasingly aware that the criminal justice system makes mistakes and that not only have innocent people been convicted of crimes, but in a continuing tragedy the true perpetrators have remained free to commit more crimes. Our panelists today represent a fascinating array of views on this topic. They will each make opening statements for seven to eight minutes, and then we will invite questions from the audience. So I will briefly introduce all of them now and then they will speak in the order that was agreed to previously. First to speak will be Sam Millsap, the former Bexar County district attorney in Texas who prosecuted Ruben Cantu. Mr. Cantu was executed in 1992; recent events indicate that he was very likely innocent. Our second speaker is Kenneth Starr, dean of the Pepperdine Law School and a former judge and solicitor general of the United States. Dean Starr has represented two clients of death row. Third will be Bryan Stevenson, executive director of the Equal Justice Initiative in Alabama and a law professor at NYU and one of the country's leading capital defense lawyers. And fourth will be William Otis, a longtime public servant who has served in the White House and as an assistant U.S. attorney. Mr. Otis is speaking today in his individual capacity. So after their brief opening statements we will invite questions from the moderator and the audience. SAMUEL MILLSAP: Let me begin by saying that I'm Samuel Millsap and I am a recovering supporter of capital punishment. I would like to be able to say to you, as I often do when I speak, that it's an honor to be with you. As I talk about this issue in the specific context of the Cantu case, I think you'll understand that I'm not honored by being here and that it's understandable that I would prefer to be back in San Antonio having a root canal. But I do consider it a privilege and in fact a responsibility for me to address this issue and do so, I hope, in a responsible way. I came to Washington with an approach to this topic that was going to be somewhat clinical, and that changed last night. I was lucky enough to see a wonderful exchange that was hosted by the Constitution Project on consensus-building and then to go from there to the Holocaust Remembrance Project dinner. The combination of those two events back to back was for me absolutely profound. I was reminded that we need to talk to each other and not hurl allegations, that we need to listen to each other and that we need to try to solve problems together. I was further reminded that lawyers have obligations that other folks simply don't have. I believe that prosecutors have obligations that other lawyers don't have. I believe that prosecutors who do good things and who produce good results deserve credit for that, but I likewise believe that when bad things happen in connection with the prosecution of criminal cases any criminal case, but particularly a capital murder case it's incumbent upon the prosecutor to assume responsibility for the results. It's incumbent on the prosecutor to be positive and look forward and ask the question, how do we make sure that this never happens again? And that's what I want to talk about today briefly. There are four basic principles that underpin everything that I have to say. The first and the most basic is this notion that we have in the criminal justice system that criminal defendants are presumed innocent until they're proven guilty. The second principle that I think is crucial and that underpins everything that we do in criminal justice is the notion that the system is designed and has functioned for more than 200 years with one overriding goal, and that is to make sure that the innocent are protected. And in fact what our system should do, and I think fails to do today, is to actually guarantee the protection of the innocent. Principle number three is an idea that I heard over and over again in law school and I have to confess that I haven't heard it very much recently that it's better that 100 guilty men go free than that one innocent man be convicted. And I think it's important that we remember that. My final point is to remind everybody, particularly prosecutors, what the statutory duty of a prosecutor in Texas and I think in most jurisdictions is: it's the duty of the prosecutor not simply to convict, but to do everything in his or her power to see to it that justice is done. And that means not just during the investigation and the trial; it also means after the trial is over, whether or not there's been a conviction. Do we have press people from Texas? I'm going to have some things to say at the end of my remarks that are directed to the state of Texas and I hope you'll listen very carefully. I've been a lifelong supporter of the death penalty. I've been a full-throated supporter of the death penalty and was until the year 2000 when I began to have reservations as a result of three or four things that happened in a very short period of time. I left office in 1987 and went back to a comfortable private practice and closed the door on that part of my life, but I've come to the conclusion — and it's based not on the Cantu case specifically but rather on other things that I've seen happen in the criminal justice system — that the system as it relates to capital murder is simply broken. It's my view in fact that because it's driven by human beings and decisions that are made by human beings, it can't be fixed, and that as a result what has to happen is that the option to put people to death has to end. I would say to Justice Scalia, who said in his concurring opinion in Kansas v. Marsh that he knew of no innocent man who had been executed, that he needs to look only to the state of Texas, to my state. Cameron Willingham was certainly innocent. In fact, in the Cameron Willingham case, there wasn't even a crime. Carlos De Luna, the most recent, was probably innocent.