Attorney Barry Scheck and Ambassador Alan Keyes faced off at Monument Mountain High School on March 13, in a death penalty debate.
Scheck, a DNA expert, and Keyes, the former Republican presidential candidate, argued over whether a country has the right to execute convicted criminals and whether America needs the death penalty at all, or applies it fairly. Keyes spoke in favor of it, and Scheck spoke against.
Barry Scheck
Scheck is well known as the DNA expert for the O.J. Simpson defense team. He earned a B.A. at Yale and law degree at Berkeley. He has been a professor of law for 20 years. Scheck cofounded the Innocence Project, and through it, he has established the innocence of many death-row prisoners with post-conviction DNA testing. He lives in Brooklyn with his family and supports his local baseball teams.
There are two moral questions surrounding the death penalty, Scheck said. About the first, reasonable people can differ. Sixty-four percent of Americans believe the death penalty is a morally appropriate sanction for a government to apply; 36 percent believe it is not. For too long, he said, the death penalty debate as involved one side or both taking the “morally superior stand.â€
The second question: Is capital punishment fairly administered in the U.S.? On that head, he does not think reasonable people can differ. It is a moral question, and it cannot be avoided.
High error rate?
Five years ago, the National Bar Association came out in favor of a moratorium on the death penalty. It cited a “serious risk of execution of the innocent.†Since the death penalty was instituted, Scheck said, 99 people have had a death-row conviction vacated. One in seven criminals who reach death row are later released from it. A recent study at Columbia University found that in state court, 60 percent of death penalty sentences are reversed. This is an enormous error rate, Scheck said, and the jurisdictions that use the death penalty most make the most errors.
In the Andrea Yates trial, the prosecution used the death penalty for jury selection. Prosecutors can legally reject jurors who say they would not apply the death penalty, Scheck said, and that class of jurors is more likely to be sensitive to insanity pleas. Until recently, Texas law defined an insane person as one who “did not know right versus wrong and did not have the ability to conform their conduct to requirements of law,†Scheck said. A paranoid schizophrenic can identify the killing of children as “wrong†and yet feel driven to do it. The second half of the definition has now been struck out. Under the old system, he said, Yates would probably have been consigned to a mental institution.
“Can we make this system fair? I don’t know,†he said. But the level of imperfection wipes out all questions. It is evident to him the country needs a moratorium on capital punishment. Illinois recently declared one. The criminal justice system there is no different from the system in Texas, he said. Certainly it is no worse. Texas did not even have a public defender system until recently.
Expensive process
If the death penalty system is fixable, repairs would cost thousands of millions of dollars in law enforcement money. There may be better uses for those funds, Scheck said. Timothy McVeigh’s trial alone cost millions of dollars in fees for the lawyers and judge and other expenses. As a DNA official in New York, he said, he can suggest many legal reforms that would do more good than a revamping of the the death penalty.
In answer to a question, he said he would still oppose the death penalty, even if system rectified its flaws, but he did not feel that anyone who advocated the death penalty took an unconscionable position.
Alan Keyes
Alan Keyes has served as ambassador to the United Nations Economic and Social Council and was a 2000 GOP presidential candidate. He produces a weekly television program, which was broadcast that night from the Monument Mountain library. His father served in three wars, and Keyes has on a series of military bases. In the ’60s, he spoke passionately in support of the Vietnam War and against the student takeover at Cornell. He earned his graduate degree at Harvard by way of study in Europe. He lives in Maryland with his family, and is a musician in his spare time.
This evening with Scheck had shown him “the interesting consequences of victory,†Keyes said as he took the stand. “A minority of people still make the case that the death penalty is an objective evil.â€
Crime & punishment
This argument is in part based on a misunderstanding of the nature of punishment. “We sometimes talk as though punishment exists for the benefit of the victim ... or the criminal ... or society,†he said, but “despite some side effects, punishment exists for the sake of the law as such.†If the law is not respected, there is no safety anywhere. The police do not often enforce the law, he said; they arrive after it has been broken. Law enforcement a is complex thing. It depends on the effect the law has on human will. Crime breeches that effect. The question is what can heal that breach, that wound.
Keyes believes the death penalty should be reserved for cold-blooded rejection of the law, for the criminal who uses death as policy. He cites Macbeth in a different context: “More is thy due than more than all can pay.†There are crimes that so outrage society that it cannot express the degree of wrongness in them. “We cannot judge you,†he said; “We will send you to the only one who can.†One thousand years ago, a society could have exiled people who defied it rather than killed them, he said. Today this country does not have that option. The death penalty fulfills a vital moral function in society.
Religious issues
As a Catholic, he was asked, how can he support the death penalty? He answered that the death penalty was not, like abortion, an objective evil. Christ acknowledges it in the New Testament, he said. The pope’s argument against it resembles Scheck’s. As with any argument — whether the sun circles the earth or the other way around, or anything else — he is free to take a separate position from the pope’s.
Keyes also argued that the lack of reform in the death penalty comes from the number of years when people have argued the country should put it aside. If the system needs reform, he argued, the country needs to resolve to do it seriously. “Let’s not kid ourselves — we are not going to throw it away.†Reversals of the death penalty are mistakes the system caught, he said: further indications that the system worked. And if prisoners are acquitted by new DNA evidence, the system is getting better, not worse. He does not think people should require perfection from a system based on human judgment. He does think a society should be aware of how they carry out the law.
Scheck said Keyes’ argument “sounds more like Immanuel Kant than American jurisprudence.â€
There are four purposes of punishment, traditionally: deterrence, rehabilitation, retribution and incapacitation. He does not think the argument has ever been made that the death penalty deters criminals. The debate within the American Legal Academy turns on retribution. Rehabilitation is not considered an option with death-row criminals, and incapacitation is a given. The question, he said, is whether retribution is a sufficiently important goal. If the crime in question is something beyond society’s power to remedy, so is death, he said.
Said Keyes, “In that case, I have put the case into the hands of a judge who can remedy my error.â€
An audience member challenged that Keyes’ argument implied the existence of a God. Keyes replied that it certainly did, and so did the United States’ system of self-government, which relied on action checked by conscience.
Scheck said he did not believe the country had to posit the existence of a God in order to ensure liberty or adequate law enforcement.
Why, another audience member later asked, is life without parole not an adequate punishment to protect the law? Scheck said, and Keyes did not disagree, that life without parole is more cruel than a death sentence. Scheck found it unimaginable.
Keyes said, life without parole is life. A death-row criminal has taken a life, and no one knows what they have done when they take a life. He has often wondered, he said, what would happen if every time someone pulled a trigger, the murderer and the victim died together.
Kinds of death and appropriate penalties
After their initial statements, Judge Spina read the debaters a list of 10 crimes, and asked them whether they would approve of the death penalty for each crime. He began with mass murder or genocide.
Keyes said if Osama bin Laden were tried in the U.S., he would no qualms about executing the terrorist. But Keyes has some difficulty with the notion of war crime, since a war assumes the enemies are not part of the same society. Sept. 11 began a war, he said, and there is a difference between war and law enforcement. Killing the enemy not the same as executing a criminal. Soldiers in a war are fighting in self defense. And a criminal is not an enemy. A criminal is a person who has gone astray.
“The hard part about war is not that people die,†said Keyes. The hard part about war is that the country sends people out to kill. And if they kill without justification, that does something to a society, removes a kind of innocence from it — warps it, dooms it.
In the case of Timothy McVeigh, Keyes would consider the killer’s mental state. He is against executing people who know not what they do. He agreed that the law set an arbitrary age for legal minors, children, because it needed an age. The point of defining legal minors is not to encourage people under age 16 to behave irresponsibility. It is to acknowledge that children are not in full possession of their moral, intellectual and physical capacities. But on the face of it, yes, he would approve the death penalty for serial murder and contract killing. He would not approve it for felony murder without intent to kill (example: a shopkeeper dies of a heart attack during a hold-up with a toy gun), or murder by a minor, or a mentally ill or mentally retarded defendant.
He would agree to the death penalty for treason, in some circumstances. Treason is an assault on things he considers more important than life, liberty among them. He would especially agree to the death penalty, he said, if the treasonable act caused mass death.
Scheck had already taken a stand against any form of death penalty. He repeated that he is opposed to it consistently, without exception. He further said those convicted of war crimes or genocide are not sentenced to death, as the Nazis were at Nuremburg. Milosevic will not be killed if he is convicted. The U.S. stands with very few in the world in the application of the death penalty.
Audience questions and answers
Audience members had a chance to submit questions: for example, what reforms to the death penalty would Scheck and Keyes advocate? Keyes said he did not agree that the death penalty was entirely misapplied. He allowed that defendants needed adequate representation and that in some cases, if a place like Illinois felt it was misadministering the death penalty it was justified in pausing “to catch up with itself.â€
Scheck said the commission in Illinois has called for as many as 80 reforms in administration of the death penalty. “People on the front lines are much less optimistic than Ambassador Keyes†that the ‚country will put in the money to implement them. The courts cannot rely on scientific fixes either, he said. DNA testing only applies to 20 percent of capital cases. Many are drive-by killings and cases where there is nothing to test. People are wrongfully convicted on the basis of mistaken identifications, invalid scientific analysis, or false witnesses. And judges will impose the death sentence in order to use it when they run for office.
The government has suggested that it may one day require DNA testing of infants and immigrants, said another speaker; did that worry them? Both said it did. Scheck said he supported the idea of a DNA databank, but that it should gather information about criminal activity: ???testing rape kids??? and investigating unsolved homicides. “By the time we are finished testing these, I’m being conservative in saying will have spent billions of dollars. When we have finished with [the homicides], speak to me about misdemeanors.†He also fears testing infants and immigrants because this country has a horrible history of eugenics — preventing African Americans from flying planes in World War II, and on, and on.
Keyes agreed. He said general DNA testing would also threaten the presumption of fundamental innocence. In this country, that is, “the law should be indifferent to you if you have not done anything. This is a legal manifestation of a deep understanding of personal and civic liberty.â€
Keyes and Scheck split again, however, over whether a criminal who has repented should be given the death penalty. Keyes said he does not believe that repentance should necessarily mean a condemned criminal be spared. The punishment is not directed at the criminal, he said. Repentance may not objectively heal the breech made by the crime — especially since he believes that God will heal that breech. If the criminal repents, death may be kinder to him. Since not everyone believes that, his opinion may cause some dismay, Keyes said. But the original crime causes the dismay, and he cannot be responsible for the criminals’ crimes.
Scheck said he was surprised that during the third presidential debate last year, George W. Bush said he based his support for the death penalty on deterrence. There has never been any proof that the death penalty deters criminals, he said, but it does explain why Bush has not been willing to pardon the repentant. Since Scheck is against the death penalty, he said, he does not have to engage in it.
Europe has abolished the death penalty. Keyes and Scheck commented on Europe’s ability to continue to exist, as a society, without it. Keyes asked in turn, “Why do we see Europe as a model for us? Most of the Europeans live under constitutions based on ours.†Many European policies tell against their respect for life, he said. He is a fan of many things European. ???In international world, enemies could count on to be enemies,??? but because the U.S. dealt with the Europeans, few friends they could count on to be friends. He thinks the European response to the death penalty is a consequence, not a cause, of their decadence.
Scheck replied that Europe is not alone in abolishing the death penalty. “The number of executions and death-row prisoners in America is breathtaking,†he said, “and it hurts us in international relations.†Spain is not sending us people they have arrested on terrorist suspicions because of the death penalty.
“The notion that Spain will not send terrorists here because they might die makes my point,†Keyes said. A lot of terrorists have gone to ground in Europe, and some here. “If we are not willing to act effectively to eliminate those who threaten us, worse will come.â€
Scheck replied that he lived in Brooklyn: he had seen the tower fall, his wife ran a family center for the victims, and he yielded to no one in his determination to see those terrorists brought to justice.
That was not the point, and it was not what they were taking about. He does say America should be embarrassed about the way the death penalty is served here. “We are the leading proponents of due process of law in the world,†he said. If the American legal system is flawed, we cannot serve a trial with integrity against anyone, terrorist or otherwise.
Keyes, in closing, said once again that he did not believe the country administered the death penalty with wholesale unfairness, and that passionate claims that the death penalty was unfairly applied undermined the country’s efforts to apply it responsibly.
The March 13 Dowmel Lecture was the final event of the season.
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Berkshire County Homes Celebrating Holiday Cheer
By Breanna SteeleiBerkshires Staff
There's holiday cheer throughout the Berkshires this winter.
Many homeowners are showing their holiday spirit by decorating their houses. We asked for submissions so those in the community can check out these fanciful lights and decor when they're out.
We asked the homeowners questions on their decorations and why they like to light up their houses.
In Great Barrington, Matt Pevzner has decorated his house with many lights and even has a Facebook page dedicated to making sure others can see the holiday joy.
Located at 93 Brush Hill Road, there's more than 61,000 lights strewn across the yard decorating trees and reindeer and even a polar bear.
The Pevzner family started decorating in September by testing their hundreds of boxes of lights. He builds all of his own decorations like the star 10-foot star that shines done from 80-feet up, 10 10-foot trees, nine 5-foot trees, and even the sleigh, and more that he also uses a lift to make sure are perfect each year.
"I always decorated but I went big during COVID. I felt that people needed something positive and to bring joy and happiness to everyone," he wrote. "I strive to bring as much joy and happiness as I can during the holidays. I love it when I get a message about how much people enjoy it. I've received cards thanking me how much they enjoyed it and made them smile. That means a lot."
Pevzner starts thinking about next year's display immediately after they take it down after New Year's. He gets his ideas by asking on his Facebook page for people's favorite decorations. The Pevzner family encourages you to take a drive and see their decorations, which are lighted every night from 5 to 10.
In North Adams, the Wilson family decorates their house with fun inflatables and even a big Santa waving to those who pass by.
The Wilsons start decorating before Thanksgiving and started decorating once their daughter was born and have grown their decorations each year as she has grown. They love to decorate as they used to drive around to look at decorations when they were younger and hope to spread the same joy.
"I have always loved driving around looking at Christmas lights and decorations. It's incredible what people can achieve these days with their displays," they wrote.
The Wilsons' invite you to come and look at their display at 432 Church St. that's lit from 4:30 to 10:30 every night, though if it's really windy, the inflatables might not be up as the weather will be too harsh.
In Pittsfield, Travis and Shannon Dozier decorated their house for the first time this Christmas as they recently purchased their home on Faucett Lane. The two started decorating in November, and hope to bring joy to the community.
"If we put a smile on one child's face driving by, then our mission was accomplished," they said.
Many homeowners are showing their holiday spirit by decorating their houses. We asked for submissions so those in the community can check out these fanciful lights and decor when they're out.
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