Laura Schaefer: Dr. Radelet, you’ve been involved with death penalty work for several decades now; tell us a little bit about what got you started in this field?
All of my training was in medical sociology and medical ethics. I did my post-doctoral work in psychiatry at the University of Wisconsin Medical School, and was hired by the University of Florida right when they killed John Spenkelink in 1979. And I thought, ‘oh my God, I’m going to a state that kills people.’ When I got to Florida, the position was half-time teaching in the medical school and half-time in sociology. In graduate school I never took a criminology course, but during my first week on campus I was riding my bike around and there was a protest against the death penalty, so I just showed up. There was a woman there who had just visited a death row inmate, and she said he had a friend who was looking for a correspondent. I said, ‘I can write’…and then the student group needed a faculty advisor, and I said…‘well, I’m going to be on the faculty.’ So I took the job as faculty advisor and started to write this guy, and then I started to visit, and then I visited him for about two years, until he took his own life.
Then I visited a second guy for three or four years—this was in the early 1980s. He was executed in 1985. His attorney was Steve Bright, and when Steve would come down to Florida taking the Greyhound Bus—because back then you couldn’t afford anything else—he began to stay at my house. So, I gradually got to know Steve, and I got to know more lawyers and brilliant activists like Scharlette Holdman. The prison in Florida is about 150 miles east of Tallahassee, and the lawyers were in Tallahassee. So if they needed someone who was relatively sane to go and notarize a document or deliver messages or eventually to be with the guy’s family when an execution occurred, I started to do those things. That meant working with any number of death row inmates. I ended up going through last visits with about 50 inmates. And then in 2001, I moved to Boulder. I had started working in the mid-1980s as an expert witness in death penalty cases. When I moved to Colorado, I didn’t know any of the faculty, but I did know the death penalty lawyers. When the University of Colorado recruited me, I was eager to make the move. Before that I was Chair of the Sociology Department in Gainesville for five years. They needed somebody to do that in Colorado, so I came out and got more and more involved in Colorado work.
Laura: You started out in Florida, which is rolling back a lot of the progress it’s made towards death penalty reforms with the recent decision by the state Supreme Court rolling back the unanimous jury requirement for imposition of a death sentence. Luckily you ended up in Colorado, which managed to abolish the death penalty this year, so you are very familiar with two death penalty states that are in very different places.
Florida is really bizarre. One of the first papers I published was on the fact that Florida was one of the few states that allowed a judge to sentence someone to death regardless of the recommendation of the jury. The other states were Indiana, Delaware, and Alabama. But Florida led the pack on that. There were 167 death sentences imposed by judges after the death-qualified juries in Florida recommended life. So I started to testify on that, trying to get the legislature to require at least a majority recommendation for death before the judge could impose [a death sentence]. In fact, some legislator complained to the University of Florida and tried to get me fired back in the day because I was taking an “anti-death penalty stand” in the legislature. So, things have changed, but at least now, we require a majority death vote before they can sentence a person to death. In the bigger scheme of things, that’s progress.
Laura: Florida and Colorado are obviously incredibly different states in a whole host of ways and especially as it comes to death penalty issues; do you see any similarities from your experience in both states in terms of how capital punishment politics works?
Well, they do compare. Some people say Florida is marching to a different drummer. I would say it’s really the same parade, it’s just Florida is in the back of the queue. These are struggles where Florida is an outlier rather than a leader in many things, but it’s also a state where the electorate is changing. More and more Puerto Ricans are moving to Florida, more minority voters. Progress is being made. You used to have lifetime disenfranchisement for anyone with a felony record, but that was changed by the electorate, much to the chagrin of the legislature. Between 1986 and 1995, Florida averaged nearly 40 new death sentences per year. Now it is down to a handful.
There are other signs of progress in Florida. They’ve got some terrific attorneys down there, and it’ll come, there’s no question change is on its way. Partly because of the changing electorate, but partly also because people are getting more educated about the death penalty. One of those changes is that voters are beginning to realize that a sentence of life without parole really means life without parole.
Laura: And I think that’s something we’re seeing in jury outcomes, right? There are certainly death sentences still being handed down in Florida, but there are also more life sentences being handed down. And obviously in Colorado that made big waves, when the Aurora movie theater shooting ended up not resulting in a death sentence. Do you think the fact of those outcomes of less-than-death reverberates towards abolition; or are those outcomes more symptomatic of the people getting readier for abolition?
Well, you know, the jury in the James Holmes case, [the shooter in the Aurora movie theater], didn’t come back with a life recommendation. The majority voted for death, but there were two or three holdout jurors. We just know that they did not decide unanimously There were several stages in the trial—are there aggravators, did the mitigators outweigh the aggravators, and so on. So it wasn’t a life recommendation, it was non-unanimous support for the death penalty. There was also another case—Dexter Lewis – right around the same time. He had been convicted of stabbing five people to death and burning down a bar in Denver. And that case came back with a non-death verdict too. […] It did go to trial, but the jury came back with life…so that’s part of it. After that case we got a progressive prosecutor in Denver, Beth McCann… who announced that her office would never again seek a death sentence. Other prosecutors have said that, and some have gotten pushback. For example, Aramis Ayala in Orlando, ran into significant obstacles for standing opposed to the death penalty. I am sure that some people disagreed with Beth McCann’s decision, but it never boiled over.
Nancy: What do you think is the most significant factor in Colorado that persuaded the legislators finally to vote to repeal the death penalty?
The most significant—not a reason to abolish, but a reason that erodes support—is the total lack of any support for the deterrence argument. There was a study in 2012 by the National Academy of Science, that thoroughly discredited the deterrence argument that has had tremendous impact on legislators. That’s not to say we don’t have some legislators who say “well hell, I know the death penalty is a deterrent, [because] I feel it in my gut! It stopped me from killing my wife!” … There was actually an assistant attorney general in Florida who said, “I had a fight with my wife and I was choking her, and then suddenly off to the left or the right I saw the electric chair. It deterred me!”
Anyhow, listening to the legislators’ pro-death penalty arguments here in Colorado this year was pretty interesting. There were still a fair number of people who argued God is pro-death penalty, which is surprising…they had no expert testimony from any clergy on that issue. 40 years ago, when I first got into the business, I remember debates with fundamentalist preachers quoting [the bible] for a pro-death penalty stance. But [this time around], that argument was made by legislators in Colorado, but no member of the clergy gave them any support. The Imams, rabbis, priests, nuns, or whatever, are all unanimously opposing the death penalty, or at least else they are silent on the issue.
Laura: Do you think the change that has happened in religious organizations towards abolition—obviously the most notable in recent years being the Catholic Church [coming out categorically in opposition to the death penalty]—is also something that is having a big impact? Because you don’t have those religious groups available to speak on behalf of the death penalty for legislator, or others who are lobbying in favor?
Yes, that’s part of it. Arguably the most successful death penalty book of the last 100 years is Dead Man Walking. The book is great, but it also opens up other doors. Sister Helen was here in Colorado last month, right before the travel ban [because of COVID19]. She gave a talk to 1,700 kids at a Catholic high school in Aurora. So the book opens doors to get her (and others) out to speak and do more in-person education. If nothing else, it has helped people understand that those who stand against the death penalty are not crazy.
I met [Sister Helen] in 1984, shortly after Pat Sonnier was executed (the principal character in Dead Man Walking) in April, 1984. The night before he was killed, I first heard her name on the radio as I was leaving Florida State Prison after going through last visits with Arthur Goode, who was also executed the next morning. And I remember thinking, ‘this poor guy from Louisiana is not only going to get executed, but he’s got to deal with a nun!’ I pictured Sister Helen going in there with a ruler and stuff like that. [Fast forward several years,, Sister Helen officiated my wedding in 1991. And I did the footnotes for Dead Man Walking, so yeah, we have done a lot of things together. I just think the impact of that book cannot be overstated. It has had, and continues to have, an enormous impact.
I went through Catholic Schools for 12 years. In fact, I got kicked out of several, despite the fact that I was totally innocent. So I tell Helen it was the good nuns who inspired my lifelong interest in people who were punished despite the fact that they were totally innocent!
Nancy: Tell me what you think about this argument. In 2016, when we did the initiative to abolish in California, I had prepared a lot of material that talked about what the cost of Proposition 66 was, which was the “speed up the death penalty” act. And you know, I did this whole bunch of research by county, and it was very clear to me that at the time, I felt strongly that the cost argument—how much it costs—not to feed and house these people, but how much it costs for the legal process is overwhelming. An example of that in Colorado, I worked on Sir Mario Owens’s case. There were times when there were ten defense lawyers on that case, who knows how many experts, and probably Sir Mario Owens’s case from the time of the trial until the end—I would bet you that cost $5 or even $8 million.
Right. And neither the case of Owens nor that of his codefendant (also sentenced to death) even entered appeals in the ten years after their sentence, or before Colorado abolished the death penalty. By early 2020, the cases were still being litigated in trial court. In Colorado, when we went for abolition in 2009, we used the cost argument, but not in and of itself. I was quite involved in a group called Families of Homicide Victims and Missing Persons. They had some brilliant leadership in that group, and they decided at the time, because the legislature was saying that ‘before we fund any new programs, you have to tell us where to get the money.’ Families of Homicide Victims and Missing Persons (FOHVAMP) is a group that talked a lot about the fact that 40% of homicides aren’t solved. They went to the legislature, and their motto was “Justice Before Vengeance.” The goal was to abolish the death penalty and use that money to establish cold case squads to investigate unsolved murders. So in 2009, there were over 100 family members of homicide victims who testified in favor of an abolition bill. And not so much because they opposed the death penalty—a lot of them didn’t—but they just realized the futility of it all.
One of the big pro death-penalty arguments is what Frank Zimring calls [using the death penalty] as a “victim services” tool. “We need the death penalty to help families of homicide victims.” And the problem with that is, they never ask a random sample of families of homicide victims. You get one or two people whose loved one [was murdered] and you ask them if they support the death penalty, and they say “yeah.” But if you do a random sample of homicide victims and say, we got 10 million bucks sitting on the table devoted to programs that might give them some assistance invariably the response from the random sample is “we’d like the money spent on increasing the clearance rate and getting the bad guys off the street.”
Nancy: I’m really glad to hear that, and that’s a really interesting idea to take to legislators.
In 2009 we missed out on abolition by one vote, and that woke up everybody – “are you kidding me!?” Everyone was totally shocked that we were so close to abolition. I think it passed the house but not the senate, or the other way around, but it was one vote in each chamber. Just unbelievable. [People were not expecting there would be so much support for abolition at that time].
Nancy: What made the difference in getting to abolition this year in Colorado?
Well, this year, we simply had the votes. There wasn’t any new strategy. The Democrats controlled the state house, the senate, and the governor’s office, and that certainly helped. People were sick of debating the death penalty. A lot of the credit goes to a young activist named Helen Griffiths from ACLU-Colorado. We’re also helped in Colorado—and this will help in California, as well—by the non-use of the death penalty. So we were spending big bucks on it, but not getting anywhere. Furthermore, some of the arguments increased people’s understanding, like the fact that two of the three men sentenced to death in Colorado hadn’t even begun the appellate process. So we could say that these guys wouldn’t be executed for 30 some odd years after they were sentenced to death, and people recognized that. I think what changed is that people were getting educated. People were talking more and more about it.
Laura: Are there any areas in particular that you think are really significant for public education campaigns making a difference?
Yes, I think one that I follow the most is the innocence issue. Hugo Bedau and I published an article in 1987 in Stanford Law Review documenting 350 cases where people were convicted of homicide and turned out to be innocent. At the time, that article was quite controversial. The article got publicity in lots of newspapers around the country. Attorney General Edwin Meese got a couple of people in the Justice Department to critique it, giving it even more publicity. Hugo Bedau was a philosopher; I am a sociologist. When I started that research I had no idea [how to read legal citations]. But when it got published in the Stanford Law Review, it was really long— 160 pages—and it effectively put the innocence argument back on the map. When the Justice Department tried to critique it, they picked out a handful of cases and said “these guys are really guilty.” But more importantly, they said, even if once in a while we execute an innocent person, the death penalty is still a deterrent, so it really doesn’t make a difference if the person is guilty or innocent. The net benefits outweigh the liability of erroneous executions. Our claims about innocence were] quite controversial until about 1991, when the first person was exonerated from death row by DNA evidence.
The DNA exonerations showed that everything that Hugo Bedau and I were talking about, causes of the error, and so on, were true. But at that point people were like “oh my god, innocent people are being executed!?” It was novel. People were surprised to hear that. Now, everyone and their brother knows about. You see prosecutors hugging exonerees, and that makes a real difference. People see that and realize, you’re no longer a kook for opposing the death penalty. We are not alone.
Laura Schaefer is a member of the DPF Board of Directors. She is a staff attorney with the American Bar Association’s (ABA) Death Penalty Representation Project. Laura directs the ABA’s Capital Clemency Resource Initiative, a national resource for information about death penalty clemency procedures and best practices in capital clemency representation.