Get Used to It: Ep. 71, "The Death Penalty: A Gay Perspective"

uh [Applause] [Music] hi i'm sheila kewell welcome to get used to it um as you may know if you watch the show we have spent the years talking about a lot of issues of interest not only to the gay lesbian community but hopefully to everybody but this one today i think is something even more special because today we're going to talk about the death penalty it's been interesting to me on to a number of people how discussion of the death penalty has sort of come back a little bit more into public consciousness the legislature of new hampshire voting to abolish it though the governor of that state vetoed that statute the governor of illinois having some second thoughts about the death penalty uh newspapers magazines some discussion going on so i wondered you know what could we add if anything in our show from the point of view of our gay and lesbian community and uh and our broader uh participation in the world so i've invited three brilliant wonderful involved people to come and talk today uh with us about it first is jenny piser who is the managing attorney of the lambda legal defense and education fund western regional office welcome jenny happy you're here delighted to be here thank you jay cohorn who's the assistant director of the los angeles office of the california appellate project which supervises court appellate counsel for indigent defendants who are appealing not only death penalty cases but others but a significant number of death penalty cases here in california welcome jay nice to be here thanks and our third guest is tori osborne who is the executive director of the liberty hill foundation one of the most progressive foundations in the country funding grassroots organizing and other wonderful things tori is also as i think many of us have seen watching this show long time activist and brilliant thinker on social issues so rounding out the panel welcome tori glad to be back glad you're here jenny i'd like to start with you because um we had a situation that really stirred not only our community but people in our community a lot with the death of matthew shepard and defendants were apprehended and tried and i know that there was some cry you know they killed him let's kill them but also i think some ambivalence in our community about it did lambda have have a stand on this or any experience with this yes actually lambda was very involved as you said when matthew was murdered the whole country was shocked and and i think many people in the gay and lesbian community felt very personal loss and great emotions in reaction to the arrest and the prosecution and the announcement by the prosecutor that these two defendants um that the death penalty would be sought and that posed a question to lambda because generally we don't take positions on a range of issues we do our work through our cases and through advocacy but we don't take positions sort of in general on issues but in this instance the death penalty and the appropriateness in this horrible horrible case was posed that question was posed to the whole country and we felt that it was important to take some leadership and to try to outline some of the key civil rights issues that are posed in every instance where the death penalty is requested and so lambda formulated a position and came out as strongly as we possibly could against the death penalty not just in that case but in all cases for a number of particular reasons but we did feel like in that instance where the murder victim was a gay man and it was such a horrible anti-gay crime that it was particularly important that our voice be heard the reasons we did that are are pretty straightforward first of all we know that the legal system has enormous fallibility mistakes are made all the time and in fact that's a significant part of our work as a civil rights organization dealing with homophobic bias in society and in the courts we know that there are mistakes and that there's bias there's bias from the u.s supreme court as we all saw 1986 with the georgia sodomy decision the bowers against hardwick decision the court wasn't even didn't mince words they said our our claim to the same uh privacy right that everybody else takes for granted was facetious and and that we could be treated as less than everybody else well we see that in every court coast to coast state and federal it's a real problem and it's a real problem when it comes to criminal trials and the death penalty in particular but here we had the right guys right i mean they really were the murderers it was a heinous crime um just for the retribution factor alone i think people say well we got them we're not worried about whether they did it they did it why shouldn't it be an eye for an eye and i think in that case it was also instructive in terms of what matthew shepard's parents said were they involved with with lambda at all in this sort of this decision they really weren't i mean we approached it as civil rights lawyers i mean and of course all of our legal work takes place in the social context we were aware of what his parents were saying and the rest of the country was saying but we focused on the way the legal system operates and in particular it's very important that rules be applied fairly and accurately especially in a situation as with the death penalty where if you make a mistake it is an irreversible mistake and if it cannot be applied fairly then it shouldn't be applied at all we could hypothesize what the world would be like and we're always working every day for a world that won't be so poisoned by bigotry but the world we have today it's terribly poisoned and our position for a long time and this is part of why we spoke out in this instance is that the way to cure hate violence including its most extreme form murder is through education you can't bring matthew shepard or any other murder victim back by the most extreme sanction being imposed on the murderer but what you can do is put society's resources and attention into reaching young people at the earliest ages and teach them that we all have to live together i think the country as a whole learned some of that lesson with some of the hideous crimes that have happened in our schools in the past couple of years we really have to start young and so you know there are roles for hate crimes laws that's a that's a a big subject but you know there are certainly roles for hate crimes laws in being a statement of society's values and that that that uh an attack on somebody based on their identity is damaging to the victim and also to everyone else who's a member of that group that's certainly true but we mustn't ever think that those criminal laws do the teaching work they don't i mean all the studies show that they don't in fact we see in the states that have the death penalty the murder rate doesn't go down in fact it's higher um the best example of that may be texas i think the country as a whole has been looking carefully at some of the statistics coming out of texas recently and and and that's that's case in point uh so violence doesn't i mean if we if we use the extreme sanction of the death penalty it doesn't cause the the rate of murder to go down you know i i agree with you personally i'm i i oppose the death penalty and i i have never thought it served a deterrent but since i listened to a lot of constituents and my colleagues and their constituents this is a real visceral issue for people um where it seems like teaching like this has to really sort of overcome this gut feeling and i thought it was instructive if we're talking about just being vindictive or punishing that matthew shepard's parents themselves did not want the death penalty to be imposed they did not feel that was an appropriate sanction so if how were we going to be more vindictive than the parents of the men who were killed but an interesting thing has happened about hate crimes which is this notion that in order for us to have full equality we have to at the very least be treated the same as other minority groups and we had an interesting situation in california i know you know where only some groups if they're you know victims do the murderers face to death penalty with other groups like ours they didn't can you talk a little about that sure well the law in california until last year was that murders based on race national origin religion a couple of other color a murder motivated in significant part by one by the identity of the victim if it was one of those characteristics there was a special circumstance that could warrant imposition of the death penalty last year wally knox introduced a bill maybe 208 i think it was that uh addressed sexual orientation gender and disability if if a murder was based on that aspect of a person's identity there should be a special circumstance as well well there was a interesting tension within the gay and lesbian community on that issue because many people feel passionately opposed to the death penalty other people felt similarly passionately that there should be equality and if you're going to have that special circumstances law it should be equal because certainly what would society what would california be saying to say that it was a worse crime to murder somebody based on race than based say on gender disability or sexual orientation because people have so many complex feelings there wasn't strong community support for a bill to add an equal special circumstances penalty and instead the law that passed and was signed by the governor and is now on the books in force in california provides for life without possibility of parole if there's a murder motivated again by sexual orientation disability or gender i think what that tells us is that as we see so often we're a very diverse community people with passionate feelings many of us felt deeply injured for example by matthew shepard's murder it didn't feel like it was just him and so while his parents statement of what they wished which was education and healing and growing for society which was a wonderful message there were many who felt that injury personally and and wanted retribution as you said and people have felt that way in california too but we are a community of people because perhaps anyway because we live with discrimination and and many types of verbal and physical harassment people feel a need for protection and and that's why the passage of the law in the form that it took i think probably gave a lot of people some measure of comfort it didn't make everybody happy but you know a few things do didn't make anybody happy uh jay it's interesting to me it's always been interesting i've known you for years the work that you have chosen to do i understand that appellate work covers more than death penalty cases but you've supervised some attorneys who've done death penalty cases and it must be a matter of discussion in cap endlessly i'm sure how how does it feel to do this work i'm sure you have personal feelings about the death penalty as well how does it feel to do this kind of work i think if you look at the number of people on death row which in california is five about 570 and you look at how many lawyers aren't willing to do this kind of work it's very instructive there are over 200 people on death row who don't have attorneys they don't have attorneys be one because the work is so difficult that it takes a special level of attorney more than a common level of expertise to be able to do it but the other thing is it's very very hard it's very it's if if the death penalty isn't cruel or unusual to the client maybe it is to the attorneys because you spend years of your life focused on helping someone who ultimately could be put to death and the compensation doesn't make up for what you i mean there's an amazing amount of money that people put into these cases themselves it's very very difficult so the attorneys that in in my northern california office especially who work on this kind of these kinds of cases and the attorneys in the private sector who work with those attorneys are among the most dedicated hard working attorneys for very little compensation but they are to a person i think dedicated to making sure that people have a fair chance part of the reason that attorneys good attorneys are needed at the appellate level is because and maybe i don't know maybe most people don't know this when you're when you're convicted of a of a crime that is death qualifiable you have to go through two trials one determines your guilt and the other determines your punishment so let's say that you've become you've been convicted and you are deemed guilty of a homicide that qualifies you for the death penalty then another jury another trial determines whether you get one of two punishments in california either death or life without possibility of parole and life without possibility of parole i think most people in california don't realize it is really life without possibility of parole and most people go through this who go through this process end up getting life without possibility of parole which is a gigantic fiscal drain on the system we'll talk about that in a little while but do you mean the trial is or the imprisonment both both well isn't that though why i mean some people say why should we spend all of this tax money on people who should be put to death right i mean i was thinking you you go to a cocktail party and i don't know what's worse if you come out as a gay man or you come out as somebody who's abolishing the death penalty favors abolishing the death penalty actually works you know in the area try both yeah really it's a double whammy right no i mean you're right um what most people don't realize is number one it is tremendously expensive to have the death penalty and people think that you can just get rid of the safeguards and the price goes way down the part of the expense is the double trial which is mandated by law it's not a matter of the habeas corpus appeals or anything which people like to would like to truncate but it's just a tremendously expensive trial procedure and as i said most people don't get the death penalty ultimately the appellate process is interesting though because if we try to eliminate that expense as the legislatures in some states and the federal government is trying to do by limiting how much habeas corpus is available you'll start executing we will start executing innocent people approximately one out of every hundred on death row is found to be innocent actually innocent and it usually takes about seven years to discover that so if you bring habeas corpus down to two or three years you have to be willing in that process to start executing innocent people you know there's also a cost i don't know whether it's a a weight on the heart or whatever but one of my feelings about the death penalty has always been that it it's hard on society i mean people think it's the right thing to do they think it's an appropriate punishment but it never makes you feel joyful i mean maybe a few weirdos but yeah i've been concerned about that sometimes they think it's the right thing to do let's go to that for a second because it's the religious you know the ten commandments thou shalt not kill all that kind of stuff the um the definition of thou shalt not kill in hebrew translates to thou shalt not murder so that takes care of people who are did you know that that's not it's not thou shalt not kill if you if you actually kill somebody in war for example it's not a violation of the ten commandments arguably because the trans the proper translation is thou shalt not murder but i went to my rabbi and asked him what the jewish position on and the historical religious position therefore on on the death penalty was and he said there are all sorts of um occasions where people are put to death in the bible it's not necessarily frowned upon it's not something that is seen as bad the death penalty is very much alive and well biblically and i i sort of looked quizzically at him and i said well a lot of jewish people are against the death penalty what i mean what's that all about and he said that in the early days the of the first rabbis and the writing of the the talmud and some of the biblical uh books and and the early rules while the rabbis recognized that the death penalty was possible and viable they didn't have a stomach for it so they created rules procedural rules that basically ensured that it would never be used and they did you have to have eyewitnesses you can't have circumstantial evidence at all and some of the witnesses the actual witnesses have to be willing to commit the execution i mean there are all sorts of safeguards that ensure that it doesn't happen so my obvious question was was what about eichmann who was taken to israel and executed and his answer was when eichmann went there was a ruling from the supreme court of israel that told the political establishment there that the execution of eichmann under jewish law would not be possible there were no eyewitnesses so according to jewish law it could not happen they threw it back into the prime minister's lap who and said if there's going to be an execution it has to be a political decision it cannot be a legal or religious decision because religion and politics say religion and jewish law says no so the prime minister wrote all over the world got responses you can imagine lots of responses said please don't do it and he ultimately did it as you know and his rationale was well while a lot of leaders of the world were telling me not to i had the six million jews who were executed whispering in my ear that it had to be done but that was his decision i i would love to have had him take a higher road but i thought it was interesting to know what the biblical well it is and i think this theme of ambivalence seems to run through a lot of the discussion of the death penalty and tori i wanted to ask you to uh sort of pick up this theme a little bit in terms of what you've heard because you've been active certainly in our community executive director of the center and of the task force and now in the i guess we'd say either the broader community or another community and in terms of economic justice and other kinds of social justice this has been a tough one not for you necessarily because i know your feelings on it but why do you see this coming up as a topic of discussion now um an admission of the ambivalence maybe well i like to think it's because we're at the beginning of another surge of kind of activism and questioning of you know dominant ideas that are taken as truth and as and eternal correctness and as you know i really think that the last 20 years there's been a real control over the kind of terms of political and social debate and of kind of economic theory by the right wing in this country and so i think there's been very little space for any real wrestling with issues and i always like to you know i sort of thank the right wing for putting morality on the agenda because i think ultimately those of us and i mean the rest of us who have lots of different views but it's probably about 70 percent of the people uh you know won't ever line up with the right wing on on most issues i think there's this kind of enduring majority of americans who favor you know right to choice and gay and lesbian rights at least in a limited way and a whole set of issues kind of environmental protections and public education that's more robust and much more economic opportunity than what we've been allowed now i'm not so sure in the death penalty and this is what i what i think is very interesting what i think is interesting that because the issue of morality and i like to think it's because it's a deeper question when you said it is hangs heavy on your heart i can't tell you how significant that is i think the conversations happen at these kind of other levels i i was sitting around a swimming pool on july 4th with about 20 lesbian activists members of my kind of family and then friends who i've known many of them for 20 and 25 years these are these are names people would recognize these are people who have a track record of working for social justice within the women's movement within the gay and lesbian community we started to talk about this issue and i want to tell you there were four of us out of 20 who were against the death penalty there was and one of us was kind of on the fence and the rest of the people were against it including one no we're for it i mean we're for it i'm sorry we're for the death penalty unambiguously unambivalently um including one woman who said let me get a chance to pull the switch and what i saw come out of her face now you know i read auras i have a little bit of that lesbian witchy thing but you know i something happens when people talk in favor of the death penalty not in a reasonable discussion but and i ha and then that day then i went to the gym and and i heard these three people next to me you know i'm on my bike and talking about the death penalty and this guy said if somebody killed my kid you just let me at them and i saw that same energy there this vengeance it's very primal i believe it's very human it's probably in most human beings but it is the lower part of our souls and ourselves and our beings and and and i so here's what well i think it's a fine thing that the country is beginning to debate this we were talking earlier there probably is a blip in the polls i mean you you probably 20 years ago because the whole country was engaged in a dialogue and debate that was not just controlled by the conservative end of the spectrum most there was far more liberal and even radical ideas that were really wrestling about how to have social accountability and how to have social change and we you know could we eliminate poverty could structures of society change institutions and ideas were on the table 25 years ago as a result of the 60s in the 70s and you know the death penalty was not a big issue then it was not an upfront and center issue but we were talking probably there were more people who were against it 25 years ago and then steadily it's probably grown but you know it's still probably a majority of people who who are in favor of the death penalty in this country i like to think that this newest debate will will actually engage people at a deeper level because in a country that that in a country that is the richest country in the history of the world that has the most people in prison that has a public education system that's failing that has an environment that's failing that has the widest gap between rich and poor of any advanced industrial country and of any country of this country in this country's history it has a whole lot of issues that go to justice and equality and you talk about infallibility of the death penalty it's going to in a society where inequality is so ingrained it's going to be in equally distributed um and so you have to at least look at it that way but i like to think that you know somebody was saying it's you know it's iraq and iran and pakistan and saudi arabia and essentially countries not known for their great enlightenment and democratic values that hold tight to this whereas virtually every other advanced certainly democratic country has abolished the death penalty you know if you talk in france about the death penalty they think you're wacko it's so marginal the idea that you would have the death penalty and that you would have the strong public support of it is so marginal and in this country you're marginal if you're against it and i guess what i'm saying is that i think it's partly because i think issues of inequality um and uh and of social action and a kind of resurgence of activism you know whether you look at a resurgent labor movement or whether you look at those demonstrations against the wto or whether you look at the ongoing vibrancy of gay and lesbian activism the reality is i think we're seeing an upsurge of questions about issues of justice and fairness which you know which i think we'll see more and more of this issue the death penalty i hope people start talking about the heaviness on the heart because when people start talking um from their kind of what i would say sort of their lower selves you know from the vindictive get even get back place in the face of evidence that says that it doesn't act as a deterrent in the face of evidence that says that innocent people die in the face of evidence that says it's unequally applied uh you know and basically there's racism and certainly a class bias involved in it so but not even on those issues but just on the issue of the heaviness of the heart do we want to have a country that stands with those countries in terms of the values of how we put justice out um and i would say i would also say that i think we need to look at you know the prison population the growing prison population the whole issue of sort of the criminalization of poverty and a generation of black and brown youth who are forced to drop out of lousy schools and given no options and and end up going to jail and being more likely to end up you know on death row but but if you just look at this issue and you talk to the people who um who are in favor of it i think it it's like we stoop to the level of people who are the most it's the same way with any killing in a funny way i mean when we look at the guys to come back from wars whether we thought it was a good war like world war ii or ambivalent like korea or a bad war like vietnam the the toll even on those who are allowed to kill without it being a sin who are trained and taught and told to kill um in addition to our being engaged by virtue of knowing through the media that someone's going to be executed and someone's going to be executed and etc that calls upon us i mean i'm fascinated that these same dykes have been hanging around a pool every july 4th for years this year are talking about the death penalty that the same people in the gyms that where we've been going for years this year are talking about the death and i want to say something because i think good people really disagree on this issue and and i will and i think there needs to be real education about the realities of it some of which we've talked about already because what i experienced around that pool was that there were people who felt afraid to say they were in favor of it because they felt they were in a generally liberal environment that has often stifled debate and discussion the kind of political correctness you know whether it's an assumption if you believe on one issue you believe on the others and so there was a coming out of the closet of those people who were sort of adamantly in favor of the death penalty and i just i just hope that the conversation that happens happens in the light of facts data that i don't think people have just as i don't think they know that every day lapd is rounding up black and brown kids all over cities in this country and treating them i mean we're beginning to see it because of the ramparts gambling scandal in l.a and the new york police under more scrutiny and so forth but i think this is a broader issue of how values in this society get codified in law and how ideas about fairness compassion and justice and you know including the response that people have to violence and to violent crime in a society that that sanctions violence from the top well it's interesting to me this is also an aspect of difference and i wonder if you might you know jump in at any time as i tell people it's a talk show not a quiet show but this notion of difference that informs the way people think about us we are different therefore lesser i mean we've seen all of these laws about us my experience sitting on the public safety committee for years in the assembly is that there's this same notion of difference about good people and bad people there's us and then there's criminals and somehow if somebody's a criminal they don't deserve the same kind of justice well there's another way of looking at it maybe i think people value security and they hate being afraid i mean this is this is the inevitable i think result of fear because crime is going up when i started my office we were five attorneys and had over a thousand cases this was like a decade ago right and and now we have 22 attorneys this is not even on the death penalty cases on on just the general crimes we have 3 500 cases i mean that's how much crime has escalated it's not just crime though it's criminalizing so many things it's passing so many statutes with heavier and heavier penalties i mean we look at the drug laws i mean where the answer again and again and again has been another statute make it a federal law make it a state law make it a heavier law lock them up and throw away the key and that's why we really have wanted to say wait a minute you can't change anything at that point the bad thing has already happened if we want society to be different we need to go way way back to the beginning just as tori was saying and as you're saying i mean the point is why is it in the legislature in california that there are bills that have been introduced to provide money and guidance and a mandate that there needs to be anti-discrimination let's all get along with each other type education with funding attached to make sure that every young person in this state has some basic tools for dealing with anger and better ways to understand each other so that they don't grow up hating each other those bills languish meanwhile the penalty enhancement statutes pass and become law your wonderful bill to add sexual orientation to the education code to make it you know clear within california law that young people should not be facing harassment or discrimination based on sexual orientation in the schools didn't quite make it just to vote short we were all watching that going how can this be how can sane people not support this bill we're talking about children here well it did pass at the point that a couple of members of the legislature were able to see it and describe it to their constituents as being related to hate crime to criminal law it was done with a reference to the penal code instead of using the word sexual orientation it cross-referenced to the hate crimes statute so that made it a criminal bill and enhance the penalty bill and it passed and became law brilliant tactic i it was and and in fact the coverage is more comprehensive and covers a number of important things that weren't wouldn't be true otherwise for example discrimination based on gender wouldn't have been covered covered otherwise and that's a very important thing for lots of young people who aren't conforming exactly to people's stereotype notions of maleness or femaleness it's in fact a wonderful result but the mechanism says something powerful about where people are in california that those elected representatives felt that they were at risk of losing their seats well but the tools are very limited i mean in a way tory touched on this because it's a question of how do you respond and when jay talks about fear i mean if you were solving this the death penalty is a final way it is clean to people it is you know it has closure education how do we know that's going to work there are other ways to get closure one of the i mean in california we're lucky enough to have something called l-wop life without possibility of parole and it works and you can put three people in prison for life for the cost of one person going through a death penalty a capital case being convicted and then have being on death row and then being executed that's a gigantic savings if we if we used el wap that protects society that that brings closure i'm i'm reminded of a wonderful study in a broader way getting away from the gay issue and the uh the anti-bias issue a wonderful study in detroit where a a bunch of inner city kids were focused on by parents and teachers for they starting with um preschool and it went all the way through school 20 years 28 years later this is a 28 year study how often do you get a 28 year study 28 year study the amount of crime first of all the median income of these kids was substantially higher the amount of crime was a mere fraction of the kids the in the control groups that didn't get this focus we could spend some of the money we save in the death penalty by focusing like that on kids to me that's the beginning of a solution i would like to have less of a job you know and i i don't know what it is that can be done in the legislature to get people focused differently but putting putting some finality through the death penalty building more prisons some of that is necessary for the safety of society but it goes beyond what's necessary for the safety of society and ultimately the safety of society is insured when uh we focus on kids i have i have a little saying uh framed in my study at home that it says it says it's easier to build a child than to repair an adult and to me that's that should be the focus there has to be a a real paradigm shift in this country and that's what i'm hoping is beginning to happen in the last couple of years with just a little bit of sort of random resurgence of a new conversation or at least a you know re-percolating conversation there has to be a paradigm shift i mean since the three strikes law was passed in the california 40 000 people have been thrown in jail for 20 years or 25 years to life three quarters of them are black or brown three quarters of them are drug addicts they're alcoholics now let alone jay's wonderful study from detroit that if there had been intervention it with early childhood programs you know that many of those people's lives would have ended up in a different way but we're talking about thrown in jail for stealing a pizza on the third offense i mean these are not murderers we're not talking about the folks that were who were facing you know the death penalty but the reality is we've created this sort of this criminalization of poverty is the word that i've been using for it where where in the society that suddenly becomes so obsessed with wealth and i mean not that this country has always uh had had a healthy regard for money and and the accumulation of wealth but i mean this in the last 20 years the kind of economic numbers that we've seen and i am telling you people don't know this and they don't they don't have the facts it's as if the data points haven't been getting out to the public whether it's just simply the facts on the three strikes and the on on this law that everybody voted for but the actual impact on people's lives of you know a young father or brother or sister for that matter being thrown in jail for life for stealing a pizza this is ridiculous there are very few americans who would who would support that most americans i really believe what they might say in a poll on the death penalty aside really want equality of opportunity to be distributed among the people and they want they don't want the kid who murders somebody to get out but the kid who steals a pizza they want to give them a chance and especially when they know that they're a drug addict or an alcoholic they want treatment and you know that keeping them in jail for a year is a lot more expensive than some some education programs or than drug treatment it's it's like a we've got to turn society's priorities upside down well it's very hard to get the facts out correctly though i mean there are lots of facts now about crime going down you know homicides diminishing you've been reading those it's nationwide that's attributed to some extent to three strikes because so many people are in prison now but see that's a misuse but that's a misuse of statistics because what it's now becoming clear that that was that was a little bit of a dip and it's like this again this this last year and where is the primary problem juveniles so we're we're just if if anything it was maybe demographic because us baby baby boomers were getting too old and too tired to commit committee that's absolutely no i understand yeah i mean i think the important thing we need to recognize is when you said it gives people closure i think a lot of people think of it that way that it can be really a false promise because if if in fact it doesn't deter crime um and we're not focusing on what really causes problems because we're so busy focused on these laws that don't solve the problem we're not putting our attention where it should be and that's part of why i come back to to the studies that show how unfair it is and how inaccurate it is because that helps people understand that it's a false promise there was a recent study just came out by uh some folks at columbia university 10-year study of the states that have had the death penalty starting in 73 um that discovered looked at looked at all the death penalty cases um 68 of the of the uh cases in which death penalty was imposed that was reversed based on errors 68 errors and that's only the ones where the appeal was successful in pointing out the errors there weren't good lawyers handling the appeal who knows what the statistic would have been in the same way that we know um and a number of studies have shown this that bias is always at play so that it's not fair it's hugely disproportionate by race two years ago another study um this one was done by the death penalty information center which focuses on these issues exclusively found looking nationwide that that if you're a black defendant as opposed to a white defendant for the same crime four times more likely to have the death penalty imposed and we've seen that in our work we were involved recently in a case out of texas where so many of these cases seem to happen actually quite disproportionate where this was a case of a gay man who was being prosecuted for killing his lover his lawyer court-appointed lawyer was asleep during a significant part of the trial and never made any objection to all of the grossly inappropriate comments made by the prosecution about him as a gay man including his closing urging that death penalty should be imposed because certainly life spent in prison wouldn't be much of a penalty for a gay man because of course we all know what goes on in prisons horrifying horrifying there's no reason to think that case is unique we know otherwise so if it's unfair and if it's riddled with mistakes how can it possibly give people the security that people desperately want doesn't it take a long-range view to look at children instead of trying to do a quick fix and find a magic bullet like the death penalty and can i ask you a question this is your talk show not mine but i ask you i think it's ours today it's great right right but but posing at least a a rhetorical question to you with term limits how can we find legislators who have long-term views when the short-term interest doesn't lead them there well it's it's not possible unless we work to keep filling the chairs with people who you know sort of randomly chosen who might have these attitudes in an era of term limits or or not the issue is not what legislators feel the issue is popular opinion and it's interesting the range of work that the four of us do represent different ways that the law is impacted and i know tori you might say well you know i'm my work's not with the law but it is because the grassroots organizing the organizing of the kinds of organizations that you fund are about attitude as much as anything else well we're about i mean the work that i do is about and always has have done in different ways it's about changing institutions and about changing ideas and ultimately about trying to kind of reshape um social social institutions in a more progressive direction a broad word but basically means i think to reinvigorate democracy in this country and pluralism and what i think is beginning to happen and what i think the death penalty i don't know that we'll ever get rid of it or that we'll ever have a majority of people who are adamantly and passionately against it but i do think you could have a more educated public that would know the truth and not the ideology that sort of flares out of people's uh you know it is it's like a magic bullet a quick fix it's like it's like a product to to solve your need for you know for get back um and it's all you know it's sort of like having this issue over here when what's really going on is much more complicated and and just as i think we sometimes you know demonize the police um and demonize and the police demonize the gang kids and the gang kids demonize the police it ain't you're asking the police to solve very complex problems and you're asking kids to somehow pull themselves up by their bootstraps out of transgenerational poverty and no jobs and no public schools where two-thirds of them you know get drop out it's these are big problems and the quick fix of the death penalty is not going to solve them and sometimes i think that's what social policy has become in the last 20 years it's it's instant it's not just short like everything else but it's like everything else and it doesn't match reality mcdonald's mac paper mac justice right mac justice that's exactly what the death penalty is and violence is rampant in this country and people are afraid and this there's a good reason that people are looking for solutions the solutions are the wrong solutions and the death penalty is like what we see in the movies good violence i'm putting that in quotes because the notion is you want to stop the violent person you have to use violence that's what all the movies do you don't ever win against a violent uh assailant by talking them out of something and so we have no example about how to resolve conflict except through violence so all we're left with is good violence and bad violence and people put the death penalty in the kind of gee unfortunate but we have to shoot back and that's especially a problem when there are questions about the mental capacity right of of the of the prisoners of the of the uh perpetrators and there is a grave question about that in a lot of cases some of them have iqs um that wouldn't allow them to attend regular schools and some of them maybe they do understand under legal terms uh that they shouldn't have done something but we have lost our principle in this country of not punishing people for their status and this and of being mentally ill we don't deal with mental illness very well as you know and that's part of the problem i would just say i absolutely agree with that and i don't want to lose sight of what a big thing we're asking of our fellows and and what a big shift we're talking about i mean lambda experienced quite a lot of negative response when we took this public position as i said we don't take positions that often and it was in a highly charged public moment which is why we felt it was incumbent to do so and to say we need to have a positive vision and it was exactly what matthew shepard's parents said we need to envision what we want society to be and think how we can get there and at this moment when many in society would expect us as people within the gay and lesbian community to say yeah this was an injury to us we want ours back that it was an important moment to say that's not how we want to operate because we we can imagine a different way of interacting and that if we can rise above those emotions and make sure that we have a system that's based on fairness and accuracy and on and on the place we want to go we know that imposition of the death penalty is never going to be a step toward the place where we want ourselves to be as a group and so that's really let's put something positive in that place and especially for all of us as a community to try to embrace that as a value because really it is about reaching over the divisions among us as you said before and i think it couldn't possibly be truer that that we wouldn't impose that penalty um if we were the witness we wouldn't be able to carry it out to somebody that we felt connected to personally and so it is about color and it is about class or sexual orientation or something else that enables us to see that person as not connected to us and to put all of our fears and our discomfort and our frustrations whether it's based on economics or based on any number of things put all our frustrations in that person and then kill we don't have to move very far to be on the right road though i mean the compromise in the state legislature in california was brilliant i mean the guy is people are still being punished for that kind of crime it just moves to what we call lwap the problem of course is that there were some who voted for the lesser punishment because they didn't think that it was as great a crime to kill a gay person i mean there are a bunch of right-wing people in my legislature as well but you started to say about i just think scapegoating in this country has become a national pastime i mean it's it's and it's really easy to scapegoat uh you know mentally developmentally disabled poor black people in prison i mean it's really easy to write them off and and i think what lambda did i mean i found it stunning it was a level of moral leadership and it wasn't today when the conversation is on the agenda it was two years ago before all this conversation uh was publicly uh held about the death penalty it was a kind of moral leadership that we don't see enough uh it's uh in our community but the fact that the debate was had and it led to that decision i thought was was uh extremely uh beneficial and i should say there were other national gay and lesbian organizations who who joined lambda and who took did this together right i'm sure ltf now they're progressively great um and and of course the aclu has been a long time opponent of the death penalty going back a very very long time but this really was an important moment and i and i think many of us felt within the the legal department when we talked about this was that it was a special moment in history because of the injury that so many of us felt with matthew shepard's parents to take that moment to say we will think about the civil rights implications of this institution right and take this moment to stress where we would like society to be it's so interesting because what you were saying really was there are values greater than equality we're going to give up our moment of being equal to everybody else and and make a higher statement that we don't need to be equal in this area or maybe that we would like society to conceive of equality differently and we want to take a step in that direction because we know people are watching and and in this moment it's it's a proud moment to be able to lead toward a different vision of equality right equality and vindictiveness isn't necessarily the kind of equality well that's exactly it i mean and that's been the part of the essence of the debate i think for our community but in in the larger sense i mean i'm very glad to see this discussion starting i'm i although i never really enjoyed thanksgiving dinner even before i came out because it was always that kind of place where you would be having these discussions you know family gets together they have different political views and it gets heated and you think can't we just have a nice peaceful thanksgiving but i think i hope this year that no one does yeah you know i think i hope they're all talking about this around barbecue tables or uh you know whatever people gather around for some intelligent discussion because this is an essential question right but i think that there's a grave danger though that this is not really what's happening at all that what this is about is a little blip of concern because of dna testing showing that some people on death row were not really the perpetrators and most of the people who support the moratoriums on the death penalty i don't think are against the death penalty i think they just want to make sure the right person is being executed so but i think as long as the conversation is also about the broader notion that we've been talking about about values and and that education of children whether it's education of children whether it's you know any piece of it i think it's a really positive it's it catalyzes a positive conversation i mean i have to say in all my years of working in gay and lesbian for gay and lesbian freedom which was 15 years solidly of doing work you know i was a queer activist for 15 years before that i was an activist on other issues and after that i'm an activist but i have to tell you there was never a conversation about kind of criminal justice issues about i mean we would talk about hate crimes so we would talk about the gay and lesbian issue there was never a conversation about sort of i don't know you know morality justice um in i mean there may have been in some places in the legal community but in the broader community we were so busy looking at our experiences that we weren't so much linking up with other experiences and i think history compels us to not have this one kind of shining moral moment that lambda had two years ago but and to not just be kind of searching our own why is our heart heavy if we're in favor of the death penalty even though we intellectually are in favor of it but but what is what is going on in this society you know what are the values that get codified into law why is there is an obsession about throwing people in jail why is the prison industry one of the fastest growing industries why is is prison labor there was some special on 2020 about the use of prison labor this growing piece of economic planning what is going on here i'm gonna have to stop this because the time is up and i think leaving us with a number of questions is every bit as good as leaving us with a bunch of answers which we don't have but this has been wonderful thank you jenny thank you jay thank you tori thank you for being here i hope you will have these discussions around every table or water cooler or wherever you are and i hope that for the benefit of your intellectual health you'll get used to it [Music] [Music] [Applause] so [Music] [Applause] [Music] you