On the Issues with Michele Goodwin

23. Why Does the Death Penalty Still Exist in the U.S.? (with Stephen Rohde)


February 22, 2021

With Guests:

  • Stephen Rohde is a constitutional scholar, lecturer, writer, political activist and retired civil rights lawyer who serves on the board of Death Penalty Focus. Rohde has represented two inmates on California’s death row. He is a founder and chair of Interfaith Communities United for Justice and Peace, past president of the ACLU of Southern California, and past chair of Bend the Arc: a Jewish Partnership for Justice. Rohde is the author of two books and has written for Ms., the Los Angeles Times, Huffington Post, Truthout and American Prospect and is a regular contributor to the Los Angeles Review of Books.

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In this Episode:

On January 16, 2021, the birthday of Dr. Martin Luther King Jr., Dustin Higgs became the 13th and final person executed by the Trump administration—just days before Inauguration Day for President Joe Biden, the first sitting president to openly oppose the death penalty.

President Trump’s spate of executions began six months before Biden’s inauguration, with six executions occurring in the period after he lost the election. Overall, the former president oversaw “the most consecutive civilian executions by the federal government or any state in the 244-year history of the United States” and “ended a 17-year bipartisan federal moratorium” on executions, according to this week’s guest Stephen Rohde.
What purpose does the death penalty serve? How have race and racism marked the implementation of the death penalty? Is there ever a humane way to kill another person? With public support for the death penalty waning in the U.S. and across the world, how can the U.S. continue to justify it, both federally and in individual states?

Have something to share? Drop us a line at ontheissues@msmagazine.com.

Background Reading:

Want to learn more about the death penalty in the U.S.? Check out the Death Penalty Information Center.


0:00:00 Michele Goodwin:

Welcome to “On The Issues With Michele Goodwin” at Ms. magazine, a show where we report, rebel and tell it like it is. On this show, we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show history matters—we examine the past as we pivot and think about the future. On today’s show, we focus on the question, Why Does the Death Penalty Still Exist in the United States?

On January 16, just a few weeks ago, Dustin Higgs became the 13th and final person executed by then President Donald Trump and his administration. Higgs’ execution came less than a week before Inauguration Day. Some have referred to this as a killing spree that began six months before the inauguration, with six executions occurring after President Trump lost the election. This constituted, as some have called, the most consecutive civilian executions by the federal government or any state in the 244-year history of the United States and ended a 17-year bipartisan federal moratorium on executions.

Image description: a mugshot of a Black man with a beard wearing glasses and a khaki shirt
Dustin Higgs (Wikimedia Commons)

Now with Higgs’ execution, it’s important to note that it took place on the birthday of Dr. Martin Luther King, Jr. This reality is troubling, not the least of which because Higgs was a Black man and the death penalty is riddled with race discrimination and racial disparities.

So, what purpose does the death penalty serve? How does race and racism show up in the implementation of the death penalty? Is there ever a humane way to kill another person? 

There is so many questions to unpack with this. Helping us to sort out those questions and many others is a really special guest.

I’m joined by Stephen Rohde. He is a constitutional law scholar, lecturer, writer, political activist, and retired civil rights lawyer. He is the founder and Chair of Interfaith Communities United for Justice and Peace. He’s the past President of the ACLU of Southern California and Past Chair of Bend the Arc. I couldn’t be happier than to have Stephen Rohde with me.

Let’s begin with the recent actions of the former Trump administration. During the 2020 presidential campaign, with a bloodthirsty support of the Attorney General William Barr. The Trump administration executed 13 men and women within six months, the most consecutive civilian executions by the federal government or any state in the 244-year history of the United States. This we take from your work, Stephen. So, tell us about how you unpack this recently for Ms. Magazine. You wrote this unprecedented killing spree ended a 17-year bipartisan federal moratorium, six of the executions occurred after Trump lost the election.

So, what does the Trump Administration’s killing spree, as you frame it as and as others have, what does that reveal about the role of the death penalty in the United States?

Stephen Rohde:

This was bloody, and to the Trump administration, it was shameful. As you’ve said, we had this long period of a bipartisan federal moratorium and that was broken with the support of Attorney General William Barr, and the President, the former President, himself. It’s important to note that this period of killing was emblematic of the death penalty across the country. Six of the thirteen men and women who were executed were Black. One was Native American. The last of these executions of Dustin John Higgs, a Black man, took place on the birthday of Dr. Martin Luther King, simply to add racist cruelty to this entire debacle. It was shameful. And I may add in a moment what Justice Sotomayor had to say about all this.

Michele Goodwin:

Well, in fact, let’s build on that. In the article you explain, and I’m quoting here, “that in a further shocking display of racist cruelty,” you mentioned Dustin John Higgs, a Black man, [his murder] takes place on the birthday of Dr. King. This was in addition to the reality that six of those executed just as you say, were Black and one Native American. Now, these disparities we see playing out in the death penalty, and we see it within the criminal justice system, more specifically. What role does race play, and racism play, in the discussion around the death penalty?

Stephen Rohde:

Overall, the death penalty is this trashcan of American policy into which virtually every flaw in American society is thrown. And that’s no more true than in the racial disparities that plague the death penalty, overall. Half of the defendants sentenced to death in 2019 were people of color out of all proportion to their population in the United States, and of those 35 percent were African American and 15 were Latinx. Here in California, we have Riverside county, that has sentenced more people to die than any other county in the United States. 92 percent of those from that county are Black or Latino. And in Los Angeles, where I live, the last 22 people sentenced to death have been people of color. This is just a debacle in American society that all of the legacies of slavery and Jim Crow and white supremacy are deeply embedded in our criminal punishment system. And when it comes to the death penalty, when there is no remedy once someone has been killed, it is the height of the cruelty of this system.

Michele Goodwin:

Well, let’s unpack that a bit further because there could be some that say, “Well, if these people have done the crime then they should do the time, and if part of that time also includes being placed to death, well they deserve it.” Now that may seem reductive and simplistic but that’s an argument that’s made. I mean, let’s face it, that’s an argument that was coming out of the Trump White House and with the Attorney General Barr, so what’s the response to that?

Stephen Rohde:

The problem is that the death penalty is a perfect punishment in an imperfect system. It’s a perfect punishment from the standpoint of completely removing a human being from society permanently and irrevocably. But it happens in a system that is so riddled with overwhelming flaws.

All of the research, all of our experience show that the death penalty is flawed due to racial and economic disparities, mistakes and misconduct by police, prosecutors, jurors, judges, ineffective assistance of defense counsel, junk science, false confessions, mistaken eyewitness identifications, and the exorbitant cost of implementation if that’s all you cared about. So you have a system, whatever your goals might be, whatever your sense of punishment and retribution. This is a deeply flawed system, which does not produce reliable outcomes. And we know this, because since 1973, at least 173 former death row prisoners have been exonerated, having been found either innocent or had flawed prosecutions. One study from the National Academy of Sciences reports that over 4 percent of defendants sentenced to death in the United States were actually innocent.

Now, I hope it’s coming across that I oppose the death penalty for guilty as well as innocent persons because of all the flaws in the system. But even if you thought about the notion of executing innocent people in this day and age, it’s outrageous. So all the rationales about punishment and the abandonment of the values of rehabilitation and giving people a second chance. If you discard all of that, which I think is a huge mistake in America, you are still faced with a deeply flawed system.

Michele Goodwin:

Well, in thinking about race, as you’ve lifted up in your writings about the death penalty, one can’t help but think about or at least consider, as you’ve put us to do and others, that the death penalty, given its racial implications, is a kind of Jim Crow extension, sort of taken from the private mob that storms the jail and horrifically string someone in a tree. In some ways, it’s the state that carry on carries on a part of that, particularly given the mistakes, prosecutorial misconduct, police misconduct, withholding of evidence and all of these other matters.

(Photos courtesy of attorneys for Lisa Montgomery)

So, I want to talk about the Supreme Court because the Supreme Court is aware of these flaws, and we’re going to get there, but before we do, let’s just add gender and sex into this equation, too. Another piece of this issue, which is really important, is to talk about the sex and gender aspects. Lisa Montgomery, was the first woman executed by the federal government since 1953. And, as you wrote, women are rarely sentenced to death in the United States and executions of women are even rarer. So, what happened in this case?

Stephen Rohde:

This case is awful and people after this podcast should go back, look at the case of Lisa Montgomery, Ms. magazine has done some original reporting on this. Here was a deeply troubled woman who had been a victim of unspeakable torture and sex trafficking, suffering from long standing debilitating disease and psychosis and hallucinations. And her lawyer put it so well. When Kelly Henry said, “Our constitution forbids the execution of a person who is unable to rationally understand her execution. This execution violates the Constitution, federal law, its own regulations, and long-standing norms along the way.”

The failure to understand the humanity of each person who is brought to the capital punishment system was resplendent in the case of Lisa Montgomery, this was an utter failure to look past her crime, and to look at who she was as a human being, to lift up her dignity and to consider her mental state, which is a flaw across the board. So, it was a shocking case that came in the midst of all of that bloodbath that Trump engaged in.

Michele Goodwin:

So, you mentioned something there that I think it’s important for listeners to pay attention to and that is looking beyond the crime. There may be those that wonder well, is that the role of the court to look beyond the crime? Can you tell us a bit about whether that’s legitimate for the court? Has the court done that in the past, looking beyond the crime?

Stephen Rohde:

Yes, the modern death penalty system divides a trial into two parts, the guilt phase and the penalty phase. The guilt phase is meant to ferret out the truth, did the person commit this crime or not, and certain crimes have added special circumstances which qualify them for the death penalty. The second phase of the trial is the penalty phase where the jury is obliged to balance mitigating circumstances versus aggravating circumstances. And the courts have upheld that process. It is on the side of the balance of mitigating circumstances where a total picture of the individual is expected to be seen and understood by the jurors.

Often due to limited resources on the defense side, the full picture of an of a defendant is not fully presented. These cases are always up against the immense resources of the state, to bring in forensics and other experts to try to convince the jury to issue a verdict of death. The defense has to scramble to find family members, medical records, social profiles and the rest. It is a duty of our criminal punishment system at all stages, to really ask the question, are we going to judge someone by the worst moment of their lives, if in fact, they have committed such a crime. And I think that is what has caused people to begin to seriously doubt that the death penalty is an appropriate punishment.

Many states have the alternative of life in prison without possibility of parole. Many question that system because it could be a death sentence in prison to send someone one away for their entire life without again, considering any redeeming experiences and transformations they have experienced while incarcerated. But we do have alternatives. And when you put up to the public, and ask them whether they support the death penalty, or life without parole, in the most recent survey, 36 percent only supported death.

So today, there actually is a minority public support for the death penalty because I think as more and more of these cases of injustice of the flaws in the system are beginning to be unearthed, the public is beginning to reject the use of the death penalty. And I believe eventually, as more and more states abolish the death penalty, we are going to hopefully see this as a relic of that very legacy of slavery and discrimination that you mentioned.

Michele Goodwin:

So, let’s get to the Supreme Court. You mentioned earlier, Justice Sotomayor’s dissent, and boy has she been taking up the mantle of dissents in this term. And so she wrote this scathing dissent, which you highlighted in your Ms. magazine article. She called out the unprecedented nature of the Trump Administration’s executions, and she wrote, I’ll quote here, “rather than permit an orderly resolution of the suits. The government consistently refused to postpone executions and sought emergency relief to proceed before courts had meaningful opportunity to determine if the executions were even legal. This is not justice,” she wrote.

She said, “yet the court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have been received, that have received inadequate scrutiny without resolving the serious claims the condemned individuals have raised. Those whom the government executed during this endeavor deserved more from this court.” What do you take from that dissent? And what do you what role do you see as Sotomayor playing in cases like this and others that you’ve been writing about?

Stephen Rohde:

Well, thank goodness for Justice Sotomayor. Since the death of Ruth Bader Ginsburg, she has taken up this question of the death penalty. In the Higgs’ case, which is the one she’s writing in. The six member conservative majority, cast aside all of the appeals without even holding a hearing. And, Justice Sotomayor’s dissent nailed them for that. In addition to the excerpts you’ve cited, she pointed out that they are fast tracking challenges to these sentences. And the courts do not have a chance to even determine if the executions were legal.

This is shocking and shameful in its own right. People try to presume we have a lofty justice system and appellate court system, but too often, when you do take the lid off that garbage can, you see how the sausage is made. It is it is reprehensible to rush cases to judgment involving the permanent elimination of the defendant through execution. How can we not have exhausted in the Higgs case, in Lisa Montgomery’s case, and the others every possible legal argument? That is shameful in its own right. I am hopeful that some of the great lawyers that are arguing these cases in the face of a six-member conservative court will have inroads to ensure but I think it’s because eventually, and maybe we’ll come to Harry Blackmun, they realize the futile nature of that search.

Michele Goodwin:

We actually will, as you’ve just predicted. For those of you who don’t know, Steve is a great friend of mine and colleague within the ACLU. And so, it’s a pleasure to be with you on the show today.

Steve, I do want to raise an issue that you’ve likely heard about and that is the Supreme Court letting stand the federal appeals court injunction halting an Alabama execution on the claim of religious discrimination. This involves the case of Willie B. Smith III on February the 11th 2021. Are you able to tell us, just give us any kind of insight about that?

Stephen Rohde:

Yes, and this is a glimmer of hope. Here was a man who wanted his religious advisor with him in the closing hours of his life. That was denied by the authorities. The case went up through the courts, and most recently, the appellate courts ordered that he be entitled to have his religious advisor or the execution could not go forward. The authorities remarkably chose to deny him the medical advisor but also postpone the execution.

So remarkably, when that case made its way rapidly to the Supreme Court, the Court did not intervene to reverse that appellate decision, meaning that that will go forward in the question of the right to a religious advisor will be implemented. I took a little glimmer from that. Sometimes cases on a procedural basis are not an entire look at what the justices are thinking. But this means that there were not five justices on the court to turn back that appeal. So we have glimmers of hope. Hope springs eternal on this issue, as well as others.

Michele Goodwin:

It springs eternal on this show, too, actually. So with that in mind, we’ll get to that a little bit later, because we do like to ask our guests about what silver linings happened to be coming forward. But in Justice Sotomayor’s dissent, you know, there’s a way in which it reaches back to Justice Blackmun whom you were just mentioning. Justice Blackmun was appointed by Richard Nixon and was the Justice who wrote the opinion in Roe v. Wade.

That was a seven to two opinion striking down criminal abortion statutes. Five of those seven happened to be Republican appointed. But we’re not talking about abortion here. We’re talking about the death penalty. And Justice Blackmun said in 1994, in a dissent, that rather than continue to coddle the Court’s delusion, that the desired level of fairness has been achieved and the need for regulation eviscerated. He said, “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.” How do we interpret that? What’s your response?

Stephen Rohde:

This was a remarkable moment in our movement to end capital punishment. Harry Blackmun was a conservative justice, as you say, appointed by Republican, but he had experienced for over 20 years these cases coming before him and coming before the Court. And he said that despite the efforts of the states and the courts to devise legal formulas and procedural rules to meet the daunting challenge of imposing a fair and reasonable death penalty, the penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.

Justice Harry Blackmun (Wikimedia commons)

And he said, “From this day forward, I no longer shall tinker with the machinery of death,” he simply refused to be a part of a charade that acted as if we are able with legal certainty to reach those decisions. He said, “The problem is that the inevitability of factual legal and moral error gives us a system that we know must wrongly kill some defendants. A system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”

This is a bittersweet report to give because that was in 1994. And the court through various administrations and various majorities, has not marshaled the majority, to listen to Harry Blackmun’s wise and experienced words and to bring an end to this system. What that does, Michele, is it leaves us with the remedy of the courts. And it leaves us with the remedy of the people. And I think that’s where the future lies.

Michele Goodwin:

It’s 27 years ago. So, moving forward, how should we be thinking about these issues? We’ve got a new administration, the Biden administration. We have a court where no longer Justice Ruth Bader Ginsburg sits and what’s your sense, in fact, with regard to Justice Amy Coney Barrett? And then we’ll get to international questions. But I want for you to give our audience your intuitions about how she’ll sit on these issues.

Stephen Rohde:

To my knowledge, she has not ruled on death penalty cases in her appellate service and has yet, although she was one of the six, I should withdraw my encomium, she was one of the six to turn back the Higgs appeals and all the other appeals during this killing spree. You know, you would expect someone who at her confirmation hearing espoused deeply Christian values and who joins a majority of Catholics on the United States Supreme Court to live those values, to live the value of life. And I am just hopeful that if she was telling the truth at her confirmation hearings, that she will study the briefs, listen to the arguments that are presented. That she may see the light of the accumulated evidence of why, as Justice Blackmun so well put it, this system inevitably makes mistakes.

And when the consequences are death, one would hope that any caring, sentient Supreme Court Justice would see that. I am not holding my breath on that Court. There is a six member conservative majority, with only five votes needed in any such case. I truly mean for you and your listeners to think that our remedies lie elsewhere in our political system.

Michele Goodwin:

Well, speaking of that lying elsewhere in our political system, let’s talk about where the United States sits internationally and more specifically what it means in terms of this President, that is Biden. So let’s first talk about Biden and then we’ll open it up to how we fit internationally. So Biden has pledged to stop federal executions. And there may be legislation that’s introduced by Congress to abolish the federal death penalty, any response to that?

Stephen Rohde

Well, that is a breath of fresh air, it means that these federal executions, essentially the new President is signaling a moratorium or a return to the 17 year moratorium that preexisted Trump. So I do think we will get some breathing space, at least on the federal level, to not face these horrific executions.

I think President Biden and Congress need to go farther. I think that having had all of the studies of the death penalty, all of the research that’s already been done, we don’t have to study it to death. I think if we can marshal majorities in both houses, and his presidential leadership, we can join, if I can tie the issues together, we can join 108 countries that have abolished capital punishment in law or practice across the world, and seven have limited it to war crimes. The United States, and this is the kind of argument I would be so grateful to see President Biden make on the day that he issues a moratorium and on the day he signs legislation to abolish the federal death penalty, because the United States is in a gruesome international league of state killing countries, as I have written, we are just behind China, Iran, Saudi Arabia, Iraq, and Egypt in using and implementing the death penalty. We are this outlier on the international scene, compared to other countries that claim to be democracies.

The United States Penitentiary in Terre Haute, Indiana, where most federal executions are carried out. (Wikimedia Commons)

The arc of history is bending toward justice. Since 2009, six states, New Mexico, Illinois, Connecticut, Maryland, New Hampshire, and Colorado, have abolished capital punishment. Two other states, Washington and Delaware, have done it because their courts have found the punishment unconstitutional. This is where history is taking us. And among all of his accomplishments, I think Joe Biden could add, and Congress could add, elimination of the federal death penalty. That would set a standard of the increasing trend toward abolition. And I think it would help us in California, where I live, and in other states across the country.

Michele Goodwin:

So, Steve, we get to a point in our show, and we could have this conversation for quite a while. And I think it needs to build out in many different ways. You’ve been so very helpful today. But I want to ask you about what we see as coming next that provides any levels of hope for the movement that you’ve been part of for a very long time.

This is not new to you, you didn’t need to be convinced because of what happened with the Trump Administration’s executions, those killings that you mentioned. You’ve known about these issues, you’ve articulated about these issues for quite some time. You’ve said that it’s a shame that it’s taken so long for Justice Blackmun’s dissent to really resonate. So in light of all of that, where is it that you see some form of progress, some form of hope, to leave with our listeners and you know, what should they do?

Stephen Rohde:

Michele, I am hopeful. I’m a glass half full kind of guy on this and many other issues. I see what young people are bringing to this movement, they are not adopting the myths and the shibboleths of old. I see people learning more about the death penalty. Conservative thinkers, George Will and others, have come to the side of abolition. So I think that constituencies for abolition are expanding. That’s certainly true in the faith community.

Here in California, I’m active with Death Penalty Focus, one of the largest nationwide organizations that has been actively opposing the death penalty on two occasions, because in California, the voters must decide the death penalty since it was written into our constitution, unless the courts do. And we’ve mounted two major campaigns to abolish the death penalty. We came within small percentage points in each campaign of doing so. Our Governor, Gavin Newsom, has imposed a moratorium on the death penalty. We have a District Attorney in Los Angeles, George Gascón, who has announced he will not seek the death penalty, and he will seek to mitigate existing death sentences. Prosecutors across the country are doing that from a progressive standpoint.

So I see activism in every state where the death penalty is retained. Moves to reduce the number of executions by electing progressive DAs. And I see hopeful signs in these public opinion polls, that people are exhausted by the notion of having the death penalty. We have something close to 740 people on California’s death row. If we ever opened the floodgates to those executions, we would have to be killing people twice a week, for fourteen years.

Michele Goodwin:

Did you say twice a week for fourteen years?

Stephen Rohde:

Yes, over 700 people, I don’t think the American people, the people of California, have the stomach for that in the sense that they have finally understood why a system like this is so bloodthirsty and deeply flawed. So I think it is like public policy, civil liberties, and civil rights issues across this country. Based on where we started this conversation, I think abolition of the death penalty needs to be deeply embedded in the national reckoning over race that this country hopefully will grab ahold of. It will be important to look at it from the standpoint of the injuries that it does to everyone in the system.

I think growing majorities in legislatures and among the public are seeing that it would advance the interests of equality and justice to once and for all abolish state killing of this nature. I think we as a people are up to that task. I think there is organizational support at the ACLU and organizations across the country to do this work. But it’s going to have to be a sustained effort, we are at the tipping point of almost a majority of states that have ended the death penalty.

This means that people listening to this broadcast need to use all the traditional methods. When they see a story in the newspaper about the death penalty, they need to write a letter to the editor. When the federal death penalty is debated in Congress and in the White House, they need to speak up to their elected officials. They need to speak up to their community organizations and religious congregations. We need to pay attention to this issue as we reach that tipping point. I genuinely believe that with the leadership of people like Bryan Stevenson and others across this country, we are ready and built for this moment. And the fact that you gave this issue full attention on your admirable program means a lot to me, and I think it means a lot to people who care about justice across the country.

Michele Goodwin:

Thank you, Steve for being on our show. I could not have had a better guest to talk about these issues.

Stephen Rohde:

It’s such a pleasure. Thank you.

Michele Goodwin:

Guests and listeners, that’s it for today’s episode of “On the Issues with Michele Goodwin.” I want to thank my guest, Steven Rohde for joining me and being a part of this critical and insightful conversation. And to our listeners, I thank you for tuning in for the full story. We hope you join us again for our next episode, where we will be reporting, rebelling, and telling it like it is with special guests tackling very important issues related to International Women’s Day, a feminist foreign policy. For more information about what we discussed today, please head to msmagazine.com.

And, if you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America, being unbought and unbossed, and reclaiming our time are important, then be sure to visit us at Apple Podcasts. Look for us at msmagazine.com for new content and special episode updates, rate and subscribe to “On the Issues with Michele Goodwin” in Apple Podcasts, Spotify, iHeartRadio, Google Podcasts, and Stitcher. Let us know what you think about our show, and please, support independent feminist media. And if you want to reach out to us—to recommend guests for our show or just chat with us—you can reach us at ontheissues@msmagazine.com.

This has been your host, Michele Goodwin, reporting, rebelling, and telling it like it is. “On the Issues with Michele Goodwin” is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Roxy Szal and Mariah Lindsay. We thank Oliver Haug for research and digital assistance. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Marsh Allen, and music by Chris J. Lee. Stephanie Wilner provides executive assistance.