 I wanted to introduce Justine and her colleague, Amanda. They do a podcast called Gin and Justice, and I've been interviewed with them. Justine is a student of mine at Burlington College for many years. She was also a delightful student, very studious, and very good student as well. And always very thoughtful, gave a lot of great opinions in class, always backed up by evidence. And we're lucky to know about her that she then went on to become a lawyer. And she, yeah, right. And I always mention that because Justine was a student who could reason and argue and present evidence and, boy, do lawyers need those abilities. Don't you think, Justine? And not so. She went on to law school in Florida, Florida Coastal. Is that correct? Correct. And then became a public defender. And she now is a public defender. And she is in the state of Florida, which also has the death penalty. And so I, because this, while it's kind of a sleeper issue, it's always there. The death penalty is always there. Over the years that have present years, of course, Vermont does not have the death penalty. And more and more states are abolishing the death penalty. When I was first in the law, only 13 had abolished the death penalty all in the north, pretty much in the northeast, although there were some out west that also abolished it. Now more and more states are either abolishing it or putting it on a stay. More and more questions about the death penalty. In my view, humble view, that is, the death penalty, in the death penalty, the state kind of assumes the role of being God. The state can decide who's guilty, really, and deserving of death and who isn't. And I think that's way too much power for a state to have. I don't really believe in God, but I believe when you die is a matter that the state should not be involved in, no matter how guilty or innocent you are. And so I thought that this would be a good time to have a discussion about that. And so I asked Justine to do that. And she's here tonight to do it with her colleague, Amanda. So Justine Snow, go away. Take it away. All right, thank you, Sandy. As she stated it all the way in, OK. So as Sandy stated, my name's Justine. I am a criminal defense attorney in Florida. This is my colleague, Amanda. She is not only my co-host at Gin and Justice, but she is also a legal assistant in our office. I do not do death penalty cases. However, on our podcast, we touch on the death penalty and the issues with the death penalty. Often we speak with death row exonerees and the like. So we're very passionate about the death penalty. So I was really happy to kind of dive into this topic and talk about it. And so what I'm hoping to do today is kind of go over the history of the death penalty, the way that it kind of procedurally came into the United States and where we are today with it. And then I'm going to go over some issues with the death penalty, just so I can kind of get a feel for my audience. Does anybody support the death penalty by a raise of hands? I can only see a couple of videos. All right, well, that's good. That'll make my presentation a little bit easier. So the death penalty has really been around since the start of civilization. However, the first written laws of the death penalty really started with Hammurabi's Code, which was about 18th century BC. And in that code, 25 different crimes allowed for the death penalty as punishment. That kind of continued on. And what you see when you look at history is support for the death penalty and use of the death penalty kind of ebbs and flows, and as does public opinion of it. So when you move to the 7th century BC, the draconian code, which when you hear that term means very strict usually, but in the actual draconian code, in that every crime was punishable by the death penalty. So whether it be every crime in the draconian code was punishable by the death penalty. Really draconian. Exactly. And so that's kind of where the term comes from is that it's very strict. And then you kind of see moving way forward to the 10th century AD, William the Conqueror. He actually was kind of progressive for his era, and he actually stopped the use of the death penalty unless it was a time of war. So he generally didn't use the death penalty unless it was a time of war. And then of course, back then, the death penalty could be imposed for a number of things, crimes that included stealing, cutting down a tree, robbing a rabbit warren, which I did not get a chance to look up what that is, but I'm assuming it's a keeper of rabbits if I had to guess. So anyways, after William the Conqueror, that trend of not imposing the death penalty really, really changed with King Henry VIII. And so for those of you who know about King Henry VIII, he was the king that kind of killed multiple wives because they couldn't bear him a son. And then he also was kind of the creator of the Protestant religion because he didn't want to be married to a wife who couldn't provide him a son. And divorce wasn't allowed in the Catholic religion. And so that was where Protestant branch of Christianity was born. And so under King Henry VIII is estimated that 72,000 people were executed by the death penalty. And so by the 1700s in Britain, there were 222 different crimes that were punishable by the death penalty. And that was around the same time, obviously, the colonies were developing and developed prior to us becoming the United States. But Britain was pretty big on the death penalty. And it came to a point where juries were not convicting people because they didn't want to see people sentenced to death. And so that's where you kind of start seeing public opinion influence the death penalty. And so what that caused at the time was reforms where Britain actually took away about half of those crimes that could be eligible for the death penalty. So they reduced the amount of crimes that could cause that. So back in the early days, starting in early history, the methods of the death penalty were really quite barbaric. Crucifixion, drowning, beating to death, stoning to death, burning alive, and impalement. Under King Henry VIII, they did boiling, burning alive, burning at the stake, hanging, of course, beheading, which obviously was very famous during the French Revolution, and then drawing and quartering. And so when hanging kind of developed, that was really thought of as a humane method to execute somebody. So that kind of became the most popular method in Britain around the times that the United States colonies were starting to develop. So obviously when the colonies were established, they brought the death penalty with them because obviously they came from Britain, and that was a very widely accepted practice. So when the colonies started, the death penalty was brought with them. Prior to laws being executed, the first execution was performed in the colony of Virginia, and that first execution was a captain, and he was accused of being a spy for the country of Spain, and so he was executed, and that was prior to even written laws in the colonies. Pretty early on, the colonies did develop sets of written laws. The colony of Massachusetts, before their written laws, they were executing people, and then New York was actually one of the first colonies that had written laws that allowed the death penalty, and they allowed the death penalty for crimes such as striking one's mother or father if you're a juvenile, or even stealing, killing chickens, trading with Indians. These were all things that were very commonplace at the start of the country for the death penalty. Can I ask you a question? So under those rules, a child could be executed? Oh, absolutely. Hallelujah. How old? So early, early common law, if you were seven and under, it was presumed that you really weren't capable of knowing right from wrong. Seven and up though, it was presumed that you knew right from wrong. So I'm assuming with the death penalty, they executed it the same way. I don't know for sure, but I'm assuming because that was kind of juvenile law back in the day. Anybody been a Catholic? Well, I've been a Catholic. You know where that rule about seven-year-olds come from? That's when below seven, the church says you cannot accuse anybody or a person does not have enough consciousness to do immortal sin. So it comes from the Catholic Church. Under seven, you can't perform a sin. Over seven, you can. So I bet you that came from religion. But anyway, go ahead. Yeah, I would guess. That's probably correct. Right. So even back in the early days of the colonies, there were actually abolitionists and people who did push against the death penalty. Some of those people included Dr. Benjamin Rush. He was one of the original signers of the Declaration of Independence. Benjamin Franklin was another one. Thomas Jefferson tried to get Virginia to abolish the death penalty and revise death penalty laws to only include the death penalty for murder. And then a gentleman named William Bradford, who ultimately became an attorney general for the state of Pennsylvania and then ultimately a attorney general for the United States. He led Pennsylvania to become the first state to only apply the death penalty for the crime of murder. And so by the mid 1800s, up until that time, the death penalty had always been a very public showing. It was supposed to be shameful. It was supposed to be embarrassing. And they wanted the public to see what could happen if you did wrong. It was supposed to be a big scare tactic. So by the mid 1800s, is really when these private prisons started being developed and the death penalty moved into the privacy of the prison walls. And so that was kind of the mid 1800s, all of the execution shifted inward. At that time, around the same time, some states actually did begin abolishing the death penalty. The first was Rhode Island and then followed by Wisconsin. It was pretty clear at that time that public opinion of the death penalty was waning and people really didn't support that theory. And actually between 1907 and 1917, six states actually did abolish the death penalty. But right after that was obviously World War I, the rise of the Russian revolution, the fear of communism, the fear of socialism. And so five of those six states actually reinstated their death penalty by 1922. Back then crimes that the death penalty could be imposed for really span, there were several crimes and also several crimes that it was a mandatory sentence. So it wasn't a discretionary sentence. It was if you were found guilty of this crime or if you pled to this crime, you would be executed. There was no phase where a jury would look at any type of mitigating factors. It was just you got the death penalty and that was that. Again, public opinion really didn't accept this practice. And so in order to shift the public opinion back to favor of the death penalty, a lot of states changed that language from mandatory to discretionary. And that's kind of where the discretionary started being born with the death penalty. And then by 1963, which really wasn't that long ago, that's when finally all of the states had agreed that the death penalty is a discretionary sentence. Methods that were primarily used were hanging, which was used really at the beginning of the colonies that came from Great Britain. New York state had built the first electric chair in 1888. And that's when that started being used. By 1924, the use of cyanide gas was introduced and that was the same gas that was being used in the concentration camps. And then lethal injection was introduced in 1977. So those are kind of the mainstream methods of the death penalty that were being used in the United States. There were a few landmark Supreme Court cases. And for anybody who wants the legal citations, just let me know. I can give those in the chat afterwards, but I'm not gonna bore you guys with the legal citations. So the first really landmark Supreme Court case was TROP V. Dulls. And that was addressed in 1958. That was not a death penalty case. However, what that case did was it addressed the Eighth Amendment for really for one of the first times. And what it said was that the Eighth Amendment contained an evolving standard of decency that marked a progressive society. And so that really laid a foundation of how we look at the Eighth Amendment against cruel and unusual punishment. So after that case came out, a lot of defense attorneys and defendants started arguing that in death penalty cases. The next case where the Supreme Court really dealt with the death penalty was in USV Jackson. This was in 1968. And this was a death penalty case. This dealt with a federal kidnapping statute. And that required the death penalty to only be imposed upon a jury's recommendation. So what that was doing was it was creating a cause for defendants to waive their constitutional right to a jury trial and either plead to the charge or ask for a bench trial in front of the judge. And so when this case got to the Supreme Court, they said this case was unconstitutional because it was encouraging defendants to waive their constitutional right to a trial. And so that was one of the first cases that really dealt with the death penalty. The next one was decided the same year. And that was Witherspoon v. Illinois. And that case is actually still important today. And I'll come back to it. But basically that case held that a jury's, a potential juror's mere reservations about the death penalty, their mere unsureness about it was not enough to disqualify them. And jurors could only be disqualified if a juror's attitude towards capital punishment could prevent them from making an impartial decision about the punishment. And I'm gonna come back to that later, but basically what that did is if you as a juror do not believe in the death penalty, you cannot be on a death penalty trial. So only people who believe in the death penalty and can impose the death penalty are allowed on a death penalty trial. So the next case, and these cases all kind of came in a cluster of a few years. So there were a lot of procedural changes with the death penalty addressed in these short years. So the next one was Crampton v. Ohio. The defendant in that case argued under the 14th amendment, the right to due process, that jurors having unrestricted discretion in deciding who could live and who could die. And that discretion resulted in arbitrary and capricious sentencing. And they argued that was unconstitutional. The court actually rejected that argument and they found that it was not unconstitutional for juries to have basically unguided discretion. And it also said that having a single proceeding for determining a defendant's guilt and then also determining whether they were going to be sentenced to death or not, that that was also constitutional. And that was in 1971. A year later though, there was a landmark case that actually caused the 10 year moratorium on the death penalty. And that was Furman v. Georgia. So in 1972, Furman essentially made the same argument, but instead of under the 14th amendment, he argued it under the 8th amendment, under the ban against cruel and unusual punishment. And the court in that case actually held that a punishment would be cruel and unusual if it was too severe for the crime, if it was arbitrary, if it offended a society's sense of justice or if it was not more effective than a less severe penalty. And the court further held that Georgia's death penalty statute, the way it was worded, was unconstitutional because it gave complete discretion to a jury. Hey, Mark, Mark. So beautiful. Oh, good. Glad you liked it. We weren't completely... I mean, it wasn't anything you really asked for, and it was something that we just decided to do, which is a little bit... How about the compensation to yours? Mark. Yeah, she cut him up. Okay, there we go. So the court actually found that the way that the Georgia's death penalty statute was worded, giving complete sentencing discretion to a jury could result in arbitrary sentencing, making it possible that it was a violation of the Eighth Amendment. So what that did effectively was it voided 40 death penalty statutes across the country. And so states across the country, their death penalty statutes were essentially found unconstitutional. And it commuted 629 death row inmates around the country and suspended those sentences because they were no longer considered constitutional. So that kind of started the 10-year moratorium. It did leave the door open, though, for states to rewrite that statute. And so states did rewrite the statute. The first one was, of course, Florida. Florida loves the death penalty, and they rewrote it stating that there would be guided discretion, and they set up a couple of procedural issues that are still in effect today, and 34 other states followed Florida's example. And later, that was addressed, and they found that the way that Florida and these other states wrote it was constitutional. And that was in 1976. The way that it addressed it was that the new death penalty statutes, as written, provided guidelines to the jurors for introducing what are now known as aggravating and mitigating factors. And I'll kind of get into those a little bit later. And because they introduced that procedural call, that made them constitutional. Some reforms that are still in use today that stemmed from those series of cases was a bifurcated process. And so what that means is you have the guilt phase, which is when a typical trial that you think of when you think of a criminal trial where a jury views the evidence of a crime and they determine whether a defendant is guilty or not guilty. That's called the guilt phase of a death penalty trial. Then you have a completely separate trial, which is called the penalty phase. That's where defense attorneys and prosecutors bring in aggravating and mitigating factors for jurors to examine to determine whether this person should get the death penalty or not. And a lot of times you'll have experts, you'll have social experts, you'll have kind of mitigation specialists coming in saying, this is what the defendant's life was like, this is why they did this, and the jury can take all that into consideration. So that was something that came out of those series of cases. The other part that came out of this was automatic appellate review. So you don't automatically get an appeal in a criminal case. If you lose a criminal case, you don't automatically get an appeal, you have to ask for it and it determines whether there is something to appeal. In a death penalty case now, because of these cases, there's an automatic appeal and it appeals the conviction and the sentencing review and the appellate court goes back and reviews all of that. It's a series of appeals that takes several years. And then the last reform that came out of these cases, what was called proportionality review. To be honest, I don't know how often they use this, but what it did was it set up the ability for appellate courts to look at a death penalty case to somebody who was sentenced to death, look at that compared to other cases to make sure that it was being proportionately affected across all races, genders, whatever. I don't know how often they use that because as you'll kind of hear in a little bit, it is disproportionately affected against communities of color and poor communities. And then the last case that came out of that era was in 1977. And that actually, the court in Coquery, Georgia held that the death penalty is unconstitutional in a case where a murder has not occurred. And so up until that point, as I stated, the death penalty was the penalty for a lot of different crimes, including rape. And then after this case, they said, nope, if it's not murder, you can't get the death penalty. The only thing that's questionable has not been addressed since is whether you can get the death penalty for treason or espionage. So those were never really addressed after that case. Does anybody know what the difference between a moratorium and abolishing the death penalty is? Anybody wanna guess? All right, so a moratorium is when the jurisdiction says, we are not going to execute anybody. For a while. Right, and so some states are currently in a moratorium. That does not mean the death penalty is going away. And so what you saw, for example, there was a moratorium going on in the federal system for several years where we were not executing federal inmates on death row. However, the issue with the moratorium is that anybody who gets newly elected can restart the death penalty. And so we saw that with the Trump administration, they started executing people when there hadn't been executions in over a decade. And when you actually abolish the death penalty, that effectively transfers people from death row to life in prison. It also prevents anybody else from being sentenced to the death penalty. In the United States today, the death penalty is allowed in 28 states. Virginia was the most recent state to abolish the death penalty. Ohio is about this close. We're hoping to hear later this month that they've passed the abolishment of the death penalty. So we will see where public opinion is kind of moving away from that. Currently the methods that are allowed for the death penalty. Lethal injection is pretty standard. Firing squad, which is when a person sentenced to death gets a hood and a target on and several corrections officers aim rifles at them and shoot at them until they are dead. Lethal gas, which is a gas chamber. It's the same exact things in the Holocaust. Same system, same type of gas. The electric chair is something that we use here in Florida. Hanging is still available in some states. And then the newest method, which some states are turning to, it's questionable whether it's constitutional or not because it is so new. It's called nitrogen hypoxia. Essentially what that is is somebody who's sentenced to death, a person will have a mask put on them. They're strapped to a table and it flows pure nitrogen into the mask and they're breathing in pure nitrogen and they essentially slowly suffocate to death. So that just a fun fact, the state of Alabama is using their COVID relief funds to build a brand new nitrogen hypoxia system to execute their death row inmates. So that's what they're using their COVID relief funds. So fun fact. Now, as I kind of stated, the death penalty can be imposed only for murder cases and then potentially treason or espionage. You can't just get the death penalty of a normal murder. There has to be aggravating circumstances and those will vary by state. Each state's gonna have a different set of laws but essentially generally what you're gonna have is it's either a murder committed during the commission of another crime such as a rape or a robbery. It's a murder committed for monetary gain, murder of law enforcement officers. We've just had a couple here recently in Florida where the state is seeking the death penalty. There were two law enforcement officers that were killed within the last two months. Actually, Mark Keith Lloyd is on trial currently. Yes. So we, and there's a trial going on here in Orlando, not far from us where the person is accused of killing a law enforcement officer and they are seeking the death penalty. Multiple murders, so serial killers and then any other circumstances that are considered to be particularly aggravating. And then sometimes you have states like Florida where it's actually very easy to prove their aggravating factors. So if you were on probation for another felony, like if you had a possession of heroin charge that you were on probation for and then you committed a murder while you're on probation you can then get the death penalty. So it varies by state but you're supposed to have aggravating factors. There's also something called the felony murder rule. Does anybody know what the felony murder rule is? All right, so the felony murder rule essentially says if Amanda and I were in an agreement that we were going to go commit a crime together Amanda has no idea that I have a firearm but we're agreeing to go rob a bank and then I go inside and I kill somebody and that wasn't part of the agreement. It doesn't matter because Amanda was committing a felony with me of robbery. She can also be charged with murder. It's called felony murder and she can get whatever punishment I get. And so I kind of have an example just to demonstrate how this can kind of play out. So we have four individuals that are agreeing to rob a bank. We have Ann, Bob, Chad and Dan and they all agree they're gonna go commit a bank robbery. There's no agreement that there's gonna be firearms and in fact there's kind of a discussion that there will not be firearms, it's gonna be fake. And she agrees she's gonna be the getaway driver. Bob, Chad and Dan run into the bank and they start threatening, give me the money, whatever, whatever. Bob unbeknownst to anybody and any of the other four pulls out a firearm. He shoots a security guard. Security guard drops to the ground. Chad turns and grabs the bag of money. Dan, so surprised, was not expecting any murder to occur, runs to the security guard and starts applying pressure to the wound. He starts doing first aid. Bob and Chad take off out the door with the money and saw the whole thing play out through the window and she says, I don't want anything to do with this. And she drives off without Bob and Chad. Who in that instance can get the death penalty? Someone wanna give me a guess? All of them. All of them. Cause they all agreed to commit the robbery. So you can have a getaway driver who's not even in the bank, never has their hands on a firearm. If they're in a death penalty state, they can get the death penalty. So that kind of shows how it can play out in scenarios where you're killing somebody who has never killed anybody. So some limitations on the death penalty. Mental illness. Mental illness was really not addressed until the first case was in 1986 and that was Ford v. Wainwright. The court in that case held that the execution of an insane person was unconstitutional and it required a separate process to determine whether somebody was insane or not. So the next time it was addressed was in 1989. So a couple of years later and they held that executing a person with a mental disability, which is separate than insanity was not unconstitutional. So you could execute somebody with a mental disability. And this was in 1989. It was not until 2002, very recently, very recently in Atkins versus Virginia that they held that the national consensus, so kind of like we talked about in that first case had evolved, right? We're an evolving society. So now it is believed that it is cruel and unusual to execute somebody with a mental disability. The issue is the definition of mental disability was left to the states. And so each state is gonna decide that a little bit differently. And same thing with intellectual disability. That really wasn't addressed and that is another thing that is left up to the states. And so a difficult thing with mental disability is that oftentimes it has to be diagnosed before somebody's 18 while they're in school. So if somebody has a mental intellectual disability and they drop out of school in eighth grade, you may never get that diagnosis. And so it becomes difficult to address later in life. And so Amanda actually has a couple of examples of people recently that have intellectual disabilities that were facing the death penalty. I do. I have Alabama executed Willie Smith an intellectually disabled man on October 21st of this year after the Supreme Court denied to review his appeal of the lower federal court ruling. That ruling denied his claim that executing him would violate his rights under the Americans with Disabilities Act. In 2019, the Court of Appeals for the 11th Circuit agreed that Smith was intellectually disabled. Alabama's denial of that claim that he was ineligible for the death penalty because of intellectual disability would be considered unconstitutional under several US Supreme Court decisions. Nevertheless, the Circuit Court upheld his death sentence. Those decisions had not been decided at the time of his initial appeal. So basically it was a matter of timing if he would have been tried after those Supreme Court decisions were made, he would not be eligible for the death penalty. And then the one right before that was Ernest Johnson. Missouri executed him on October 5th after the US Supreme Court refused to consider a stay of execution. His attorneys argued that he was ineligible for the death penalty because multiple IQ tests showed that he had the mental capacity of a child. He had a primary school level reading. He was born with fetal alcohol syndrome. He had also been missing a fifth of his brain tissue since 2008 when he had a tumor removed. Attorney has pointed to the 2002 Supreme Court ruling that asserts that using the death penalty against Americans with intellectual disabilities violates their eighth amendment. The US state's top court denied Johnson a stay of execution last year and refused to look at it again. The state's governor also refused to block the sentence even though elected officials, racial justice advocates and faith leaders, including the Pope were fighting for his life. And those are just the most recent ones. Those are just ones that kind of happened this month, but there's issues surrounding that all the time. And then the last kind of limitation that came is on juveniles. And so Sandy, you were talking about this a little bit earlier. And so in 1988 was the first time that the Supreme Court actually addressed juveniles when it came to the death penalty. And they held that the execution of offenders that were age 15 or younger at the time of their offense was unconstitutional and that no state with a minimum age for the death penalty could not execute somebody under the age of 16 at the time of the crime. So that was 1988. Then in 1989, there were a couple cases that the Supreme Court addressed again. And the court held that the eighth amendment does not prohibit the death penalty for crimes that were committed at the age of 16 or 17. So they said, nope, that's fine. If they were 16 or 17, they knew right from wrong, you can still execute them and sentence them at a death penalty. Finally, finally in the year of 2005, which was really not that long ago, the court held that it was unconstitutional to execute a defendant who was younger than 18 at the time that they committed their crime. And so that actually caused a flood of cases to come back for resentensings in the juvenile system that I know our office is still dealing with resentensings of tons of offenders. Tons, really? Yes, yes, we have a lot. Well, we love the death penalty in Florida, so. Yeah, right. You guys in Texas, right? Yeah. Right, yes, I think we're in a competition. So that's kind of where we stand with the death penalty. So here are some issues with the death penalty and why I think it should be abolished. The first part is the jury system. Does anybody know, in a normal criminal case, what the qualifications are to be a juror? Nothing. So you have to be 18. You have to be a resident of whatever jurisdiction you're sitting in the trial. And then you have to be a citizen, so you cannot be an immigrant, you cannot be a resident alien, you cannot be an illegal immigrant and sit on a jury. And then in a lot of states, you cannot have a felony conviction unless your rights have been restored by the governor. So it really limits the people in the jury system. And then the special qualification for a death penalty case, which we've already touched on, is that you have to believe in the death penalty. If you don't believe in the death penalty, you're booted from the jury for cause. It doesn't even count against the prosecution or the defense. So it really narrows the pool of who is sitting on your jury if you're facing the death penalty. So that's one issue. The next issue you hear a lot of people argue is the cost. Why does it cost more to sentence somebody to have a death penalty trial? The first is that when people who are facing the death penalty, the majority of them are poor, they cannot afford their own attorneys. On a death penalty case, you actually get appointed two attorneys. So you have generally two prosecutors, you have two defense attorneys, and those are all paid for by taxpayers. You also, it's a mandatory that an expert has to be appointed on both sides. So you can't just, in a normal criminal trial, really the defense doesn't have to do anything. You can just sit back with your feet up at the table because it's the state's burden to prove somebody guilty beyond a reasonable doubt. But in a death penalty trial, it's mandatory that an expert is on both sides. And so, again, it's paid for by taxpayers. If the defendant's not paying for it, which the majority of them are not. So you're paying for an expert on both sides. The jury selection process takes longer because you are inquiring about jurors' feelings on the death penalty. So it's a longer process. You bring in a bigger panel of juries. You're paying more jurors to come for the day. So that alone, just the trial process already is costing more. The incarceration of people who are sentenced to death row is significantly higher. That's because you cannot put death penalty inmates in the same cell. They're all in solitary confinement. So one cell per inmate for decades. There's mandatory appeal processes. Those take up decades. And again, you're appointed appellate attorney. So again, that's another cost to the taxpayers. And then just for an example, in the five executions that were carried out by the Trump administration in July and August of 2020, the Federal Bureau of Prisons had spent $4.7 million to execute five people, $4.7 million. Florida, for example, is spending $51 million per year on the death penalty. And it averages out to about 24 million per execution that's carried out. And that's because people are housed on death row for decades before it's finally carried out if they ever make it to the execution because a lot of people are in there so long they die of natural causes. A lot of states, when abolishing the death penalty, they actually cited costs as a reason. And so for example, New York State, in their legislature, they had stated that they had spent $170 million over the course of nine years and had zero executions. So it's really a waste of $170 million. New Jersey, same thing, they had spent $253 million over the course of 25 years and had also carried out no executions. And that's not because they weren't trying to not execute people, but that's just how long it takes for somebody to make it from sentencing to death row to execution. So a lot of states have abolished it for cost purposes alone. Obviously the death penalty for anybody who studies criminology or knows anything about criminology, deterrence is a falsehood. It's a myth. Police chiefs, 57% of police chiefs surveyed across the country have found that they don't believe the death penalty creates deterrence because they do not believe that perpetrators in moments of violence are thinking about consequences, let alone the death penalty. Nobody is sitting there before they commit a murder saying, oh, I better not do this because I might get the death penalty. Ann wasn't sitting in the car at the bank robbery thinking about getting the death penalty. Exactly. 88% of the country's top criminologists believe that the death penalty does not create a deterrence homicide and 87% that believe that abolishing the death penalty would have zero effect on the murder rates. So if we are having the death penalty as a public safety precaution, it's really not doing its job. The other issue is that it disproportionately affects communities of color and poor communities. That's very evident. That's been evident in the time that we've been doing our podcast, the death row exonerees that we've spoken to have been Hispanic or women. Women, and we will talk about her name as Sunny in a moment. The first case and really one of the only cases that addresses this issue is in 1987, a defendant actually argued that the death penalty, there was a racial disparity and that it was applied more to black people. He brought statistics, he brought graphs, he showed all of this. And the Supreme Court agreed, but they said that the racial disparities would not be considered and recognized as a constitutional violation of the equal protection of the law unless intentional racism or disparities against that specific defendant could be shown. So you can show racial disparities and death penalty all day. That's not gonna be taken into consideration. You have to show specific racial disparity, which as we know is very difficult to show because the best way to show it is to show a pattern. But the Supreme Court has said that's not enough. And Amanda actually has a lot of statistics on how it affects races and poor communities. Yes, the way that race can affect death sentencing. Let's start with race of the victim. Nationally, around 75% of murder victims in cases resulting in executions have been white, even though only 50% of murder victims generally are white. A 1990 examination of death penalty sentencing conducted by the United States General Accounting Office noted that in 82% of studies, race of the victim was found to influence the likelihood of being charged with a capital murder or receiving the death penalty. Those who murdered whites were found more likely to be sentenced to death than those who murdered blacks. Individual state studies have found similar disparities. In fact, race of victim disparities have been found in most death penalty states. Another way race can affect death sentencing is the race of the defendant. According to a recently updated study by Professor Catherine Beckett of the University of Washington, jurors in Washington were four and a half times more likely to impose a sentence of death when the defendant was black than they were in similar cases with white defendants. Another way is the race of the jurors. A Dallas Morning News review of trials in that jurisdiction found systematic exclusions of blacks from the juries. In a two-year study of over 100 felony cases in Dallas County, the prosecutors dismissed blacks from the jury twice as often as whites. Even when the newspaper compared similar jurors who had expressed opinions about the criminal justice system, black jurors were excused at a much higher rate than the whites. Of jurors who said that either they or someone close to them had had a bad experience with police or in the court system, prosecutors struck 100% of the black jurors where it was only 39% of the white jurors. And last is the race of the prosecutor. Yeah, this is very interesting. Whenever and wherever capital punishment is authorized by law, the decision whether or not to seek the death sentence is left to the discretion of the prosecutor. Surveys of prosecutors have found a striking lack of diversity. For example, a 1998 examination of chief district attorneys in states where the death penalty is found, 98% of the prosecutors are white. 1% black, 1% Hispanic. According to a study by the women's donor network, 95% of elected prosecutors in the US are white and 79% are white men. A death penalty information center analysis of that study further shows that in states that have the death penalty, 94.5 of elected prosecutors are white and in nine of the death penalty states, 100% of the prosecutors are white. Yeah, very undiverse prosecutors. So that's some of the ways it disproportionately affects them. There are special circumstances for women too that really aren't being brought to light. Women are, when they are facing the death penalty, they're torn from their children and their children are fostered. They go through the trauma of knowing that their mother is gonna be executed. Women are held to a higher standard in society too. You can't be a bad girl. Women are not allowed to be bad and they are judged more harshly than men. Even though they only make up 3% of the death row executions, there are currently 51 women on death row and there are circumstances that really aren't considered. They're judged more harshly than men when they are sitting on a death penalty case. Especially, I think, can I just ask the question, especially if they kill their mates? Yes. If even a battered woman kills her husband or partner and it's a male, they're treated incredibly harshly. It seems to be. Exactly. And we have the pleasure of speaking with a death row exoneree. Amanda's gonna include the link in the chat here. Her name was Sonny Jacob. She was the first and only woman on death row in the 1970s. Her and her husband were falsely convicted of murder. And she was ripped away from her children. Her children were babies at the time. And then her parents were raising her children while she was on death row. They got on a plane crash and they were re-orphined again. When she was in prison, they didn't know what to do with her because they didn't have a woman on death row. And so they created a special separate building for her and all of the guards and inmates were ordered not to speak to her because they couldn't make friends with her because if they were one of the ones chosen to execute her, they didn't want them having a friendship. For years. For about 20 years. In silence. And so the sad part about Sonny is her and her husband were ultimately found to be innocent but it was two years after her husband was executed. And so she was released. Her husband had been executed already and then they found them innocent. And she's amazing. So Amanda included the link to our interview with Sonny. She was amazing. She now creates healing centers across the globe for exonerees and people who are falsely convicted because it happens everywhere. You said you interviewed her? Yes. And we included the link to her episode in the chat. So you should be able to see it afterwards if you pull up the chat. That's terrific. She's amazing. And so one of the other issues with the death penalty is the illusion of healing for victims. So the prosecution and the state make it seem like, oh, once this person is put to death, that's justice for the victim. And that's just a falsehood. And what happens is victims' families are traumatized over and over again through the decades of the appeals process that come with the death penalty and also as the penalty phase. And then ultimately, if a person is executed, they don't actually feel healed and there really isn't justice and it doesn't solve the problems that they have. And often they're re-traumatized because they feel responsible for the death of someone else. We also had the pleasure of interviewing a man named Chris Castillo. He's a board member for an organization called Journey of Hope. And what they are is they are an organization of murder victim family members and they work to abolish the death penalty, essentially. And so we interviewed him and he talked about how after his mother was murdered, he had so much anger and he wanted to see justice. And that was what kept being perpetrated to him over and over again was that this will be justice for your mother, this will be justice. And what he learned through inner healing is it didn't create justice. And he actually fought against the death penalty for the people involved in his mother's murder. And so Amanda's also linking that into the show notes as well as their organization's website. And then the last and perhaps the most compelling argument against the death penalty. And if there were no other arguments, this one would be enough. And that's the issue of potential innocence or actual innocence. To this day, even as recent as last month, there has been 186 exonerations from death row. 186 since 1973 that we know of. Some of those have occurred after somebody has already been executed, such as Sonny's husband. There has been several where the Innocence Project has received a certificate of exoneration after the person has already been executed. And so you never really know. And so we've had the pleasure of interviewing several people who sat on death row for decades. And Amanda has also posted those in the chat. We have Juan Melendez, he sat on death row for 17 years for a murder he didn't commit. We had Joaquin Martinez. So both of them are Hispanic. Juan faced a lot of difficulties in his trial back in 1980s. They weren't entitled interpreters back then. He didn't speak English. He didn't know what was happening. He didn't speak English. He didn't know what was happening. All he knew was his attorney kept telling him it was gonna be okay. And next thing you know, he's sitting on death row for 17 years until he was finally found innocent. There was actually a taped confession found in the prosecutor's files that had been there the whole time. Yeah, I mean, when you hear these people's stories and the reasons they, it is not compelling reasons that they sat behind bars. It was very preventable issues, misconduct. Things that happen all the time. Yeah, exactly. Joaquin is another one we interviewed. His, he got turned in for a double homicide in Tampa by his ex-wife who was mad at him for moving on. She went to the police and said, I think my ex-husband is responsible for a double murder and they just went with it. They had zero evidence. And in fact, his DNA didn't match the scene. They still prosecuted him anyways. And he sat on death row, not as long as many of the others, but he sat on death row for eight years of his life. And so that is perhaps one of the biggest issues with the death penalty is that innocent people are executed. The Supreme Court did address this in 1993, Herrera v. Collins, and the court addressed the constitutionality of executing someone who claimed actual innocence, which happens often. The court left open the possibility that the constitution bars the execution of someone who conclusively demonstrates that they are innocent. Noting that these cases would be very rare, which we know is not true. 186 people have been exonerated. The court held that in the absence of other constitutional violations, new evidence of innocence is no reason for federal courts to order a new trial. Wow, oh my God. And so when we talk to the Innocence Project and they discuss the difficult, it is almost impossible to get a conviction overturned. They have to basically prove complete innocence, prove somebody else did it, do all of this back work, all while the prosecution is objecting to DNA testing, new hearings, any of that. They don't wanna hear any of the new evidence and they have to fight tooth and nail to maybe get a new hearing. And it's almost impossible to prove your innocence. And Amanda's gonna post the Innocence Project of Florida episode in the show notes as well. So in these episodes, we highlight all of these issues in depth and we talk to people who are kind of experts at what we're talking to them about. So that's really a lot of the issues with the death penalty. So what's an alternative to the death penalty? Obviously the main one is life in prison without parole. If you have somebody who you truly believe does not believe in society, life in prison without parole, which I think is more of a punishment because you're sitting in there, you know? Then what you do is you take those costs, those death penalty funds and you reinvest them to the victim's family. You reinvest them to community programs to address social issues that cause these things. And then what do we do with these serial killers and mass murderers? We study them. We send our best psychologists and we best our best criminologists and we go study them and see if there's something about them that we can learn to prevent crimes like these in the future or to recognize those before they happen. And those are alternatives to the death penalty that I think we really need to fight for. I know Vermont does not have the death penalty but the federal system right now still does. And the biggest issue is talking about this and raising awareness because a lot of people don't know these things are going on. People who work in law like myself, I didn't know all of these things were going on until we started the podcast and we started finding all of these people who were exonerated from death row. So if you're interested in any of that, obviously Amanda posted all of the links on the side. Also, you know, one issue we didn't touch on was their botched executions. Oh yeah, cause they're gross. And so she's gonna put a link from the death penalty info center. I mean, there is a stack of executions that have gone wrong in history. They're real bad, including Sonny's husband. Including Sonny's husband who we talked about. He actually- He was an innocent man with a botched execution. Yeah, and so he was in Florida, they used the electric chair, they still use the electric chair as the primary method and he actually had flames coming off of his head for several minutes. It's just like 13 minutes, I think, to kill him. But so that's kind of the death penalty where we are. Does anyone have any questions? I did actually. So why then, for instance, why do other societies in Europe in particular, they've eliminated the death penalty? What ties the United States so strongly to the death penalty, including President Clinton, when he passed that bill, there was a crime bill that he passed, and he increased the numbers of crimes for which you could get a death penalty. Why is the United States pretty much alone amongst so-called civilized countries that maintains the death penalty? Why? So my opinion on that issue is it's really rooted in our start and a lot of death penalty crimes in early colonists and early states days were tied to slavery. And so the most death penalty cases have come from the South and slave laws. So crimes that were not crimes for white people were crimes, if you ran away from your master, that's not a white person crime, that's a black person crime, and that was a capital punishment crime. And if you actually took a map of lynchings in our country and overlapped it with the death penalty executions, it's very close. And it's mainly, as you said, it's mainly still in the South, right? Mainly, right. Texas and Florida all day. Yeah, really, that's, wow, jeez. So is there any hope for those states that they will eventually abolish it? Getting people to talk about it. Right. Getting people to talk, people, is that a- A lot of people don't know about any of these issues because it doesn't affect them because they don't ever think about it. The Senate's work for the end of the fifth, I don't think that was before, and that really was it. Somebody have a question, because we can't hear it. Can you hear it, you guys? You have a question? Let's talk. I wanted to share an experience I had in trying to stop the death penalty, which actually happened in the state of New Hampshire about 25 years ago. Green Shaheen, who is one of the senators in Congress representing New Hampshire was the governor of New Hampshire. And I and many other people formed an organization to try to end the death penalty. And to make a long story short, we succeeded. The legislature and New Hampshire is not an easy place to do this. Voted to abolish the death penalty. And when it got to Jean Shaheen's death, she was a Democrat. But she vetoed it because she said she believed some people should die for the crimes. Right. And we had spent months and months and years, some of us, trying to stop it. And so whatever we're trying to do anywhere you better have plans A, B, and C because nobody had any idea she was gonna do that. Really, is that right? What? You didn't have any idea about it? Not really. Because we would have been leaning on her more. Yeah. It was awful. It really was. And the reason I volunteered for them was that I had been arrested for opposing the wars in the Middle East at Bath Ironworks. And the judge sentenced me to do community service. So I asked him if he would point me to do it for the death penalty committee. And he did. Wow. And I was there serving my sentence for being opposed to war. And then Jean Taheen just sold us out and it was very hard. She is still in the Senate, isn't she now? She is. She is still in the Senate. But does New Hampshire have the death penalty now? Not anymore. I think they finally abolished it. Correct. What about, Justin, did they abolish it? Yes, they did. So now all of New England, there's no death penalty or is that, I mean, Connecticut, Rhode Island, Mass, Vermont, New Hampshire, and Maine, right? I don't know about Maine. Yeah, nowhere in the Northeast has the death penalty. Not even New York? Nope. That's New York. New York abolished it a while ago because of the cost of it. They were spending so much money and then they weren't executing anybody anyways, so. Wow. Any other questions? Okay, so, but I wanted to thank you very much. That was great. Thank you so much. Thank you. But I wanted to mention something from two weeks ago. Today, remember we did a talk about parental contact between parents and children in jail and that talk was led by a prosecutor from San Francisco by the name of Chesa Boudin. And his father had been sentenced to 75 years in New York state for killing a police officer in a political crime. He, Chase's father and mother, both were convicted of murder, a felony murder, because they had robbed a bank in order to fund black liberation army activities. David Gilbert was sentenced to 75 years to life and he got out today. Yes, he was released from a New York prison today, which is really, really moving. I used to visit that man in jail, actually. And he was granted parole today, so. And he's probably, he probably is like 75, 80 years old, maybe older, probably. But anyway, so that was really good news. And I was so happy to interview his son, Chesa Boudin. Okay, any final thoughts? All right, so Vermont Institute of Community and International Involvement will return on November 10th. And at that time, we're gonna be discussing the Jacobson case, which was the case, I believe, in 1904, which allowed the government to mandate vaccines. So I think it's a very timely topic and I welcome you all to stay tuned on November 10th. So thank you, thank you, Justine. Thank you, Amanda. I hope to see you. Thank you for having us. And Justine, I hope that we should get your podcast. I would love to know how to get it. Yes, we actually have listed all of the, if you can see the chat on the side, we have links to it, but you can also just go to jinnandjusticepodcast.com and you can actually listen to the episodes on the website. Great, great, great. So I hope to see you also in my backyard visiting Rosie and Nathan, something. Yes, soon. I'm hoping to come up for Thanksgiving, so. Then, oh, okay, great. All right, thank you very much. So thank you. Thank you. Yeah, great, very good work. Thank you. Thank you, thanks for having us.