Public Attitude Shifts on Death Penalty

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This week the Supreme Court ruled it unconstitutional to impose the death penalty for the rape of a child. Richard Dieter, the executive director of the Death Penalty Information Center, talks about the state of capital punishment in America's courts and about changing public attitudes.

ANDREA SEABROOK, host:

This week, the Supreme Court ruled it unconstitutional to impose the death penalty for the rape of a child. In the majority opinion, Justice Anthony Kennedy said there is a national consensus against using capital punishment in such cases. In fact, there were only two criminals on death row for child rape.

Richard Dieter, the executive director of the Death Penalty Information Center joins me now here in the studio. Thanks for coming in.

Mr. RICHARD DIETER (Executive Director, Death Penalty Information Center): Thank you.

SEABROOK: Now, I know that you personally are opposed to capital punishment but you also followed this very closely, so I'm going to ask you to take off the advocacy hat for a second and put on your fact-finding hat and just tell me this latest Supreme Court ruling was a victory for death penalty opponents. Is the death penalty generally on decline in the United States?

Mr. DIETER: It is being used much less than it had been. There's been a 60 percent decline in death sentences over the past seven years. About a 50 percent decline in executions, smaller death row. Actually, fewer states now have the death penalty and public support still is about two-thirds in favor but less than it had been in the 1990s.

SEABROOK: So what's going on? Why the decline?

Mr. DIETER: Well, there has been a series of revelations about the death penalty, about mistakes, about innocent people who were almost executed and now have been freed. Of course, the DNA revolution cemented that.

SEABROOK: I know there have been a handful of states that have imposed moratoriums on the death penalty - Illinois, Maryland. These are for different cases though, aren't there?

Mr. DIETER: Yes, for different reasons. Illinois has had a hold on executions since the year 2000 when the governor decided that the death penalty was really unpredictable, out of control. Other states - you mention Maryland and California - have a hold on executions because there are still lingering issues around their lethal injection process.

Then there's a couple of states, like Nebraska, which had electrocution as their method of execution. That was struck down. They don't have any replacement for it, so they can't have executions. And in a sense that's a de facto moratorium there as well.

SEABROOK: In places that you mentioned where there is no method of execution, can convicts still be sentenced to death?

Mr. DIETER: Yes.

SEABROOK: Pending…

Mr. DIETER: (Unintelligible) and…

SEABROOK: …some way?

Mr. DIETER: That's right.

SEABROOK: Okay.

Mr. DIETER: So it doesn't bar prosecutions, and in a matter of fact none of these states that have this moratorium, including Illinois, bar the prosecution and the death sentence being handed down.

SEABROOK: Can you tell in the numbers showing the decline of the death penalty how much has to do with the states working out these problems. Can you tell that?

Mr. DIETER: Well, I think it's more than that. I think it's a public shift on the death penalty. This is not just the questions of we got a reform the method of execution. This crop in death sentences is that we've been educated that the death penalty doesn't work as promised and so we better be more careful in its application.

SEABROOK: Do you see this attitude change showing up in opinion polls?

Mr. DIETER: It does. It shows up not so much on the for or against the death penalty, but the deeper questions that are now asked by the Gallup poll, for example, are which is the proper punishment for heinous murder: the death penalty or life without parole? And in the most recent Gallup poll on that more people said life without parole, and that was the first time it happened, than the death penalty. Just by a little bit; it was, you know, close to 50-50.

And that's the question that juries now face. It used to be life or death. But now they're told the options are life without parole or death, and they feel that that's actually a middle ground. So, life without parole sentences are growing and the public is supportive of that, even as they support the death penalty.

SEABROOK: Richard Dieter is the executive director of the Death Penalty Information Center. Thanks very much for coming in.

Mr. DIETER: Thank you for having me.

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High Court Bans Death Penalty for Raping Children

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Another Key Ruling

D.C. Gun Ban Ruling Pending

The Supreme Court is scheduled to rule Thursday on the constitutionality of Washington, D.C.'s ban on handguns. Read a Q&A detailing that case.

The U.S. Supreme Court on Wednesday banned the death penalty for people convicted of raping a child.

In the 5-4 decision, the court ruled that executing someone convicted of child rape violates the ban on cruel and unusual punishment. Justice Anthony Kennedy penned the opinion for the majority, writing: "The death penalty is not a proportional punishment for the rape of a child."

The opinion makes it clear that the court believes the death penalty is appropriate only in cases where the crime results in death. The ruling overturns laws in six states that allowed the death penalty for the rape of a child and commutes the death sentences of two men on death row in Louisiana to life in prison. The case was based on one of those men, Patrick Kennedy, who was convicted of brutally raping his 8-year-old stepdaughter in 1998.

Initially, Kennedy called 911 and said the girl had been raped by two boys. "I need an ambulance," Kennedy told the 911 operator. "I need police. My little girl ... is 8 years old. She was off in the yard, and she said two boys grabbed her and raped my child, and I'm trying to find these motherf***** because I am going to kill them."

The girl initially stood by that story, but police were unconvinced. Later on, she changed her story and implicated her stepfather.

The court has been limiting the use of capital punishment somewhat in recent years, ruling that juveniles and those suffering from mental retardation cannot be put to death. In 1977, the court also ruled that a man who raped a 16-year-old girl would be spared execution. This case takes that ruling a step further.

In his opinion, Justice Kennedy wrote: "The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability."

Kennedy argues that allowing the death penalty for raping a child opens the door for execution to be considered in less severe rape cases. And while juries and judges could take into account how egregious the rape is, Kennedy says that a few less brutal rape cases are sure to slip through. The girl in the Kennedy case was so severely injured by the rape, she required immediate surgery.

Kennedy noted that the capital cases put an additional burden on witnesses — especially if those witnesses are children, who would be required to testify and retestify for years to come. He also pointed out that these cases would have a particular susceptibility for wrongful execution, because child testimony is occasionally unreliable or even imagined.

Many victims' rights groups surprisingly joined Kennedy's defense in this case. They said because so many rapes of children are perpetrated by family members, it's unthinkable to ask a child to implicate a parent or relative, when doing so means possible execution.

The court's four more liberal justices joined Kennedy in the ruling, while his four more conservative colleagues dissented. No one has been executed in the United States for a crime not involving murder in almost a half-century.

Victim's Prior Statements Barred at Trial

In a separate decision issued Wednesday, the Supreme Court ruled that a convicted killer deserves a new trial because jurors heard testimony that should have been excluded — the statements of his ex-girlfriend, shortly before he shot and killed her.

In Giles v. California, prosecutors said Dwayne Giles shot his ex-girlfriend, Brenda Avie, outside his grandmother's house in 2002. Giles' niece and grandmother apparently heard gunshots and found Giles standing near his ex-girlfriend with a gun in his hand. Giles claimed to have shot her in self-defense. He said she was jealous and had charged him, and he had killed her by accident.

Prosecutors introduced a domestic violence report to refute that. Avie had filed the report with police about three weeks before she was killed. She had told police that Giles had accused her of having an affair and had beaten her up. She said he then threatened to kill her if he found her cheating on him.

Giles' attorneys said the domestic violence report was inadmissible in court because the Sixth Amendment guaranteed Giles' right to face his accuser, and since Avie was dead, he couldn't. The high court agreed in a 6-3 vote. It said that a criminal defendant must be able to confront witnesses against him, even if the defendant is responsible for the witness' absence.

With additional reporting by NPR's Dina Temple-Raston

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