Markkula Center of Applied Ethics

Ethical and Legal Concerns about Capital Punishment in the U. S.

An interview of Ellen Kreitzberg, Associate Professor of Law at Santa Clara University, conducted by David Perry, Director of Ethics Programs at the Markkula Center for Applied Ethics, broadcast 7 May 2001 on "Ethics Today, " KSCU radio, 103.3 FM.

David Perry: On May 2nd [2001], I had the privilege of exploring a number of ethical concerns about executions in the United States with Ellen Kreitzberg, an associate professor of law at Santa Clara University. In 1992, Dr. Kreitzberg created the Death Penalty College at SCU, a six-day residential program for defense lawyers to train them in preparing and presenting arguments during the penalty phase of capital trials. She is a member of the Board of Governors of California Attorneys for Criminal Justice, and serves on the Death Penalty Conference Committee, which conducts an annual training seminar in Monterey for defense counsel. She also runs a law clinic at SCU where she trains and places students with lawyers handling capital cases. And for nearly 20 years, she has taken on numerous capital cases herself in Southern states on a pro bono basis.

Ellen, in the past 25 years or so, how many people have been executed in the United States?

Ellen Kreitzberg: Well that date would mark from 1976, which is when the United States Supreme Court re-instituted the use of the death penalty in the United States, and since that time there have been 711 executions by the different states around the country.

DP: How many people are currently on death row?

EK: The number is really quite staggering. As of May 2001, there are 3726 men and women and actually children; there are about 72 juveniles on death row…. In California we have the dubious distinction of having the largest death row in the country, with 591 people on death row, and certainly long before the end of the year we will go over the 600 mark.

DP: How does the US compare with other countries, in the fact that it allows execution as a form of punishment?

EK: The death penalty is a real black mark in the United States’ international standing in the world, both in terms of human rights and as a participant in many international treaties. When you look at international executions over the last decade or over the last couple of years, the United States has listed around third place. The leaders in this area are China, the Congo, and then Iran and the United States have often been neck and neck. So it’s certainly not the company we usually pride ourselves with being associated with…. Besides being the object of a great deal of ridicule in the international press, the US’ use and implementation of the death penalty has violated numerous international agreements–in particular, the persistence in executing juveniles and the mentally retarded.

DP: I read that in the past 30 years, there have been something like 34 people who have been executed who have had some sort of mental retardation–maybe sixty if you include people with mental illnesses apart from retardation.

EK: I would expect the number to be at least that and perhaps higher, and the only reason it wouldn’t be even higher is that many individual states, over the years, one by one, have passed specific bills prohibiting the execution of someone who is mentally retarded.

However the Court has not held, thus far, that the execution of someone who is mentally retarded is unconstitutional. Now interestingly, they are going to hear that very specific issue–is executing someone who is mentally retarded a violation of the Constitution–and that case should be heard in the fall.

DP: Within the US, which of the states tend to execute the most people?

EK: Texas is really the leader, so it gives you some idea of where our leadership, now nationally, will be with the federal death penalty. Texas has a death row of only 448 individuals, which is smaller than that of California, but since 1976 has executed 246 men, women, and children. And the numbers only really speak to part of the story in Texas. Not only do they execute more people, but also their standard and their system of justice are at a level that very few states would tolerate. Certainly it is surprising that the courts tolerate it.

Texas is the place that gives us the stories that while we laugh about them, to the individuals involved they are really quite appalling: the lawyer sleeping through the trial; an individual who, when DNA testing was done, the DNA did not match him, so they decided someone else must have been involved with him, and they wouldn’t give him a new trial based on the DNA evidence. It is a system of justice where the lawyers are underpaid, overworked, generally incompetent, and yet, the machinery of death continues to kill person after person.

DP: Looking beyond Texas, across the US, have there been cases where we know now that innocent people were wrongly convicted and executed?

EK: There are several books and various studies which do claim the number is anywhere from dozens to hundreds of persons who have been wrongly convicted and executed. It is, of course, impossible to document that with the kind of certainty that people would expect. We do know this, however: We know that since 1976 when the death penalty was reinstated, more than 95 men and women have been released from death row around the country because they were exonerated and found to be innocent. This is different from someone whose case was reversed on a legal issue and they were retried, or perhaps a plea agreement [for a life sentence] was reached. These 95 men and women were found actually, completely and totally innocent of their crime. Many of them are walking the streets, some have since died or committed suicide, but they were exonerated and released. So it’s a window into what we know is a rate of error that is occurring in the criminal justice system around the country.

DP: To take a specific recent case, the governor of Illinois supposedly is in favor of capital punishment in some cases, but nonetheless, he placed a moratorium on executions in that state. Why did he do that?

EK: Governor George Ryan of Illinois is actually an interesting example. He has a track record as a politician of being clearly in favor of the death penalty, almost without qualification for most of his political career. [When he became] governor and had to preside over executions,.. he was someone who–unlike many other governors–actually took the responsibility of that job very personally and very directly, in terms of whether or not he should sign the death warrant and let the execution go forward. He was governor at a time when executions were going forward fairly regularly in Illinois, at the same time that exonerations were being made public and people were being released from death row. So he was presiding as governor at a point in time where the same number of people had been executed as had been released from death row.

While this was beginning to give him some pause, a particular case–Anthony Porter’s–was the one that really created his reassessment and his call for a moratorium. Mr. Porter was within 48 hours of being executed. The casket had been bought, the funeral clothes were laid out, the last meal was ordered. His lawyers were gathering, as often happens, to try and determine whether there were any last minute appeals or issues that could be raised on Mr. Porter’s behalf, and innocence was not one of them that was really considered a viable alternative. But Mr. Porter had the good fortune, as it turns out now, to have an IQ somewhere in the range of 41-51. A lawyer wrote up a petition raising the issue that it would be unconstitutional to execute someone with this low an IQ. The Court granted a several months' stay on the basis of this issue that was filed within 48 hours from the time of execution. It was during that stay…that a Northwestern [University] journalism class took Mr. Porter’s case and discovered evidence of actual innocence. Mr. Porter was ultimately exonerated and freed. Now the irony is, had Mr. Porter’s IQ been 70 or 80, the motion wouldn’t have been filed, no stay would have been granted, and we would still be sitting here saying we have no definitive evidence that an innocent person had been executed.

DP: Then this case would not have been picked up by the students either.

EK: No. Unfortunately, with so few resources, people try to investigate cases where they might have the possibility of saving a life rather than exonerating somebody who has already been executed.

DP: Are there other governors or state legislatures that are considering moratoria, similar to the one that Illinois Governor Ryan has instituted?

EK: Actually, there’s a great deal of legislative activity going on around the country in various phases…. Russ Feingold, in the United States Senate, with Representative Jesse Jackson, Jr. in the House, have introduced a moratorium bill on the federal death penalty in order to study its fairness and effectiveness, because preliminary Justice Department studies have shown it to be racially biased. Other legislatures have these kinds of bills percolating; none have come to fruition; and as yet the politicians, for the most part, are not stepping forward and taking any leadership role in this issue. Here in California, as in many other states, there is a grassroots movement going on, trying to get local governments to support a moratorium in the hopes that the state legislature will respond…. [There was a public forum on this in in San Jose on May 31.]

DP: I understand that some of the people who have been on death row and exonerated have been freed because of DNA evidence, and we have better tools now to examine evidence for DNA. I suppose in theory, though, that that could also help us know that a particular individual really is guilty of a capital crime. I wonder if you could speak to this: Do you think it’s realistic to hope that our state criminal justice systems could be reformed enough to guarantee that no innocent person would be executed, and get beyond the DNA evidence?

EK: DNA is a very powerful but misunderstood device. What DNA can do is it can be a very definitive identifier in terms of either including or excluding someone as being involved in the crime. The DNA testing and evidence only occurs in a situation where the assailant leaves biological evidence behind. For the most part, we are talking about rape cases where there is semen left that can be tested. There are occasionally non-rape cases where the assailant may have left behind hair fragments or fingernail fragments that are of a sufficient quantity that they can be tested for DNA. But if no biological evidence is left behind, which is what occurs in most cases in the criminal justice system, no DNA testing can occur. The second qualifier is: even among those cases where there is biological evidence left behind that can be tested, if it is not gathered and collected and preserved properly, you will end up with a false test.

So I think the possibilities with DNA testing are immense in terms of being able to exonerate certain people, or on the other hand, definitively indicate that they were the perpetrator. But it still will not be available in somewhere between 70 and 75 percent of the cases in the criminal justice system, perhaps even more. So it is not the silver bullet that is going to solve our criminal justice system problems….

DP: Many people who defend the institution of capital punishment argue that some crimes are so horrible, so callous or cruel, that their perpetrators in effect forfeit their right to live, and therefore, that the state, when it executes such people, does not wrong them or commit an injustice. How would you respond to that sort of argument?

EK: That’s perhaps the hardest question, and certainly the timeliness of it now, with Timothy McVeigh facing execution, puts that question really in the forefront. Personally I’m against he death penalty and I’m against it in all circumstances. [Still], at the time of the Oklahoma City bombing, I actually could not even watch the evening news because I would sit in my living room and just cry and weep at the scenes of what had gone on there. Having two small children myself in daycare facilities, to think about the anguish of the families that are left behind, in particular those with small children,…caused me to personally re-examine some of my feelings.

I think the question, however, can be answered on a couple of different levels. First, there are two things that happen when a murder or a tragedy occurs: One is the personal grief that the victim and the victim’s family are going to feel, and there is no depth that can even measure how great that grief might be. The second thing is how do we punish the person who committed these acts? We have always recognized that since we’re a system of law and not of men or women, we can’t allow an individual person’s grief to dictate what the punishment should be. Even to the extent we do, executing McVeigh [for example] is not going to bring back those children. Certainly if executing an individual would bring back a victim, I would be standing in line to encourage people to do that. It would seem that then there would be a greater purpose, a more noble purpose, but we know that’s not going to occur. In fact, many people now state quite definitively that it doesn’t bring the closure or the solace or the comfort that many of these victims look to, so it often gives a very false hope to the victims of these tragedies.

The second [level] is we need to separate the individual, who maybe we can say on some scale deserves to die, from how the system works in its application in every case. While Timothy McVeigh is easy for us to identify, that doesn’t make the system one that works. McVeigh was charged under a federal death penalty, which the Department of Justice’s own study showed was unfairly and unevenly applied to persons of color and to persons in certain geographic areas. So we cannot uphold the system because we feel good about it in one particular case, when it is really not working most of the time. We have to ask, Does the system work? If the system is not working, we can’t allow it to go forward even in the one awful case, the worst of the worst.

None of the views expressed here should be taken necessarily to reflect those of the Markkula Center for Applied Ethics. The Center does not take official stances on controversial issues. "Ethics Today" seeks to promote careful reflection, civil dialogue, and informed action on matters of ethical significance.


Cabana, Don. Death at Midnight: Confessions of an Executioner. Northeastern University Press, 1996.

Prejean, Helen. Dead Man Walking. Vintage Books, 1996.


Death Penalty Focus

Death Penalty Information Center

Innocence Project; Santa Clara University