Talking to the Media
Questions and Answers to Prepare and Role-play

Once you have convinced a local group or body to pass a resolution calling for a moratorium, be sure to alert the media of the action. Send out a press release and follow it up with phone calls.

The following question and answers are aimed at helping you prepare for talking with the media. Use them to role-play and build up your confidence in speaking publicly about the death penalty. It is not necessary to memorize these answers verbatim. You will be most effective speaking in your own words, integrating your own understanding and experiences.

Share additional questions and answers based on your own experience talking with the media. Send your feedback to: Equal Justice USA/Quixote Center, P.O. Box 5206, Hyattsville, MD 20782; 301-699-0042; 301-864-2182; ejusa@quixote.org.

Q. Does the death penalty deter violent crime?

A. There is no credible evidence that it does. Rates of violent crime have ebbed and flowed both in states with and without the death penalty with no discernible difference based on whether a state had or used the death penalty. Some of the biggest drops in murder rates in recent years have occurred in states that have no death penalty or have no one on death row.

Q. Wouldn't a state's adoption of a moratorium on executions make it less likely that the death penalty would deter crime because it would delay executions for many more years?

A. No. There is no credible evidence that the death penalty does, or ever has, deterred murder. Indeed, there is no credible evidence that it did so back in the 1930s, 1940s or 1950s when the average time between a person's conviction and execution was significantly less than it is now.

Q. Some crimes are so horrible that the only adequate punishment is death. Why should there be a moratorium on capital punishment for those who commit the worst crimes?

A. There needs to be a moratorium on executions because the whole system by which convictions and death sentences are handed down is so badly flawed that we cannot have confidence in the outcome of trials. Even for some very horrible crimes, there is no guarantee that the jury will inevitably vote for a death sentence when the trial is conducted fairly. For instance, the jury in the Hillside Strangler case voted for a sentence of life without parole because it concluded that the offender would suffer more that way.

Moreover, it is important to note that numerous people have been found not guilty only after serving many years on death row. In some these instances, the defendant has come very close to execution only to be saved because of lucky developments in his or her particular case. There inevitably are other innocent people who are not so lucky - and the number of innocent being executed will increase with the removal of legal resources for death row inmates and the imposition of time limits applicable even to inmates without counsel. In such cases, the system is not really working. Fairness requires a moratorium on executions.

Q. How do capital cases differ from other cases?

A. Capital cases are far more complex and protracted than other cases, requiring large investments of time by defense counsel and familiarity with a highly specialized body of capital sentencing laws. Death penalty trials involve two stages, the guilt/innocence and sentencing phases. All other trials only have one guilt/innocence phase.

During the sentencing phase of capital trials, the defense is permitted to present anything about the defendant's background, from birth on, that might make it more likely that the jury will not vote for death. The defense must also prepare to deal with evidence of aggravating factors that may not be directly related to the alleged offense.

In almost every way, death penalty cases have their own unique legal issues, particularly in regards to constitutional doctrines. Procedurally, different rules apply. Handling them well requires substantial legal skill. Failure to understand them can lead to fatal failures to raise meritorious arguments. Even jury selection is more complex than in other cases. Additionally, heightened publicity, frequent in death cases, adds to the burden on defense counsel.

Q. It seems that no one is ever put to death without years of appeals. Doesn't the lengthy appeal process guarantee that the system is fair?

A. There is no guarantee to a full and fair appeal under existing standards of review. Prisoners whose convictions or death sentences violate the Bill of Rights often cannot raise these issues in their appeals even though these violations may well have affected the outcome. Basically, adhering to rules and procedures has become more sacred than prisoners' appeals. Prisoners lose the right to appeal issues because of their attorneys' negligent failure to raise them. Once an issue has been appealed and denied, reconsideration becomes virtually impossible even if the U.S. Supreme Court later sets a precedent that benefits the prisoner. A new precedent is not automatically retroactive if the courts had failed to find the issue valid on a prior appeal. A federal court may be barred from granting relief, even if it concludes that the state court erred in denying relief, unless the lower court was "unreasonably" wrong.

The Virginia case of Joseph O'Dell illustrates this reality. The U.S. Supreme Court and lower courts refused to take action on his claim that the jury that had sentenced him to death was never informed that a sentence of life would mean life with no possibility for parole. Later, the Supreme Court ruled in Simmons v. South Carolina that to keep such information from a jury is unconstitutional. Yet, the federal courts refused to apply this decision to O'Dell's case, concluding that earlier court rulings in his case were reasonable even if they contradicted the new precedent. O'Dell was executed in July 1997.

Q. Everyone who is accused of a crime has the right to a lawyer. Why isn't that enough protection for the accused?

A. Not all lawyers are equal and many are not qualified to represent people in death penalty cases. Capital cases are extremely complicated, require working knowledge of certain constitutional issues, and are financially, physically, and emotionally draining. Yet, in many death cases, courts appoint lawyers who lack the special skills and resources needed to handle these cases properly. We have seen attorneys who have never even handled criminal cases trying capital cases! There are also lawyers who make it obvious to the jury that they have no belief in their clients, lawyers who fall asleep during trial, and lawyers who do not prepare properly. The right to "effective assistance" of counsel should mean more than the right to a warm body at the counsel table. Yet, courts rarely have found lawyers in capital cases to be "ineffective counsel," in violation of a defendant's constitutional guarantees, even in these types of circumstances.

Q. Who pays for the months and years of appeals for people convicted of capital crimes?

A. The costs of appeals are relatively low, compared to the enormous costs of capital pretrial proceedings and trials, which make the death penalty far more expensive than the cost of the stiffest alternative, life imprisonment without parole. Most of the quite small appeals costs are incurred by state governments. A small portion is incurred by the federal government. To the extent that law firms handle certain appeals pro bono or without pay, they absorb the significant costs. The greatest costs to firms handling these cases pro bono is the value of the time their lawyers and investigators spend on these cases which otherwise would be spent on paying business.

Q. Public opinion polls indicate that most Americans favor the death penalty. Why call for a moratorium?

A. The public has never said that it favors a death penalty system where individuals are more likely to be sentenced to death because of an incompetent lawyer, where a defendant is unable to secure relief when his or her rights have been violated, where racial discrimination is pervasive, and where mentally retarded persons or juveniles are executed. It is the factual, unfair implementation of the death penalty, not the death penalty in the abstract, that is central to our call for a moratorium on executions. If they had all the facts, many people who favor the death penalty in the abstract would likely oppose the way it is being implemented and support a moratorium.

Q. The Supreme Court has concluded that the death penalty is constitutional. Why are you calling for a moratorium?

A. In 1972, in the case Furman v. Georgia, the U.S. Supreme Court invalidated virtually every death penalty law in the U.S., concluding that such laws failed to properly balance the need to ensure overall consistency in capital sentencing with the need to ensure fairness in individual cases. Four years later, the high court upheld a new generation of death penalty statutes in the case Gregg v. Georgia, basically finding that the death penalty was constitutional with special procedural requirements for capital prosecutions to achieve such balance.

Now, two decades later, it is apparent that efforts to forge fairness in capital cases have failed. Indeed, in 1994, retiring U.S. Supreme Court Justice Harry Blackmun - who voted with the majority in Gregg - concluded that this most recent "death penalty experiment has failed" and that "no combination of procedural rules or substantive regulation ever can save the death penalty from its inherent constitutional deficiencies." Since then, Congress and state legislatures have ignored Blackmun's conclusion, as well that of the American Bar Association and other legal experts, and have enacted new laws which limit state and federal court review of capital cases and gut funding for state resource centers assisting death row prisoners in their appeals.

Such deregulation led the ABA, in February 1997, to call for a moratorium on executions, concluding "administration of the death penalty, far from being fair and consistent, is instead a haphazard maze of unfair practices with no internal consistency."

Q. Doesn't your group oppose the death penalty? Isn't your resolution aimed at total abolition?

A. Our group [does/does not] favor ending the death penalty. This moratorium resolution, however, addresses the immorality of the system that currently imposes death sentences - a system in which racist and otherwise profoundly unfair decisions determine who lives and who dies.

Q. Has any person been sentenced to the death penalty for a crime they did not commit?

A. According to the Death Penalty Information Center's July 1997 report, Innocence and the Death Penalty, 69 people have been released from death row with evidence of their innocence since 1970. These defendants spent an average of seven years on death row before their eventual release. This report indicates that the average time between conviction and execution is eight years. In light of recent state and federal legislation that will shorten the time between conviction and execution, the average death row defendant could be executed before his or her innocence is discovered.

It is important to note that these 69 people are the lucky ones. This number doesn't include those who were executed despite compelling evidence of innocence that they were never able to effectively present in court due of lack of investigative and legal resources or attorney error, such as missing a deadline for filing an appeal or failing to present a key issue.

Q. How many innocent people have been executed?

A. Two American researchers, Hugo Bedau and Michael Radelet, have found 23 known instances of innocent people being executed in the U.S. in this century. It is important to note that these are cases where innocence was provable after execution. It is likely that many more innocent people have been executed but it is difficult to determine how many as courts rarely review a case after the defendant has been executed. Rather, courts hear the cases brought by live prisoners. And given that virtually everyone on death row is poor, the survivors of those executed almost never have the resources to prove innocence after an execution.

Q. How would you define competent counsel?

A. For an attorney to competently represent a capital defendant, he or she must have hands-on experience with both phases of a capital trial - the guilt/innocence determination and the sentencing proceeding. Additionally, to be effective a defense attorney needs ready access to assisting attorneys, support staff, investigators and independent experts to deal with everything from ballistics evidence to the mental health of the defendant.

The American Bar Association has adopted detailed standards for competent counsel that could serve as a blueprint for policymakers wishing to ensure competent representation for all capital defendants. Further, the ABA has recommended that attorneys in capital cases be selected by independent appointing entities and not by judges. The group has found that too often judges appoint attorneys whose background and experience does not adequately equip them to handle capital trials and appeals. There are many instances in which attorneys only a few years out of law school with no capital trial experience have been appointed as lead counsel for capital defendants. There are also cases in which attorneys have had no allegiance to their clients. Moreover, in many jurisdictions, judges are elected and the political pressure to have trials result in death sentences can affect the counsel appointment process.

Q. What do the courts do about lawyers who are ineffective in capital cases?

A. Unfortunately, very little. The current legal standard for ineffective assistance of counsel now used by courts is so low that many lawyers whose incompetence has badly harmed their clients are not considered ineffective under the law. Practically this means that some prisoners never get a court to hear their claims of constitutional violation simply because an incompetent attorney failed to raise it! This is one of the major reasons we have called for a moratorium on executions.

Consider, for instance, the recent case of George McFarland in Texas whose attorney slept through most of his trial. The trial judge concluded that while the constitution guarantees an attorney it "does not say that the lawyer has to be awake." The Texas Criminal Court of Appeals, the highest criminal court in the state, seems to agree. In 1996 and 1997, it refused to hear McFarland's and two other petitions from death row prisoners whose attorneys slept during their trials.

Clearly, in Texas and across the country, competency standards need to be raised. At the same time, the courts should be mandated to consider a prisoner's appeals on the merits of his or her constitutional claims, regardless of an incompetent attorney's failure to raise them.

Q. The U.S. Supreme Court has ruled on the question of race discrimination in the imposition of the death penalty. Does this ruling mean that discrimination isn't a real problem?

A. Absolutely not. Outrageously, in 1987, in McClesky v. Kemp, the U.S. Supreme Court held that a widespread pattern of racial discrimination in the imposition of the death penalty does not violate the Constitution. The Court added that if legislative bodies perceive there to be a problem, they are free to pass legislation to deal with it. No such legislation has yet been enacted anywhere in the U.S.

Such lack of action on the part of the courts and legislatures does not mean racial bias in the death penalty does not exist. A 1990 General Accounting Office review of studies on this issue concluded that widespread racial disparities exist in the imposition of the death penalty. All other factors being equal, a defendant is several times more likely to receive a death sentence if his or her victim is white than if the victim is black.

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