updated 8/2/2004 9:45:09 AM ET 2004-08-02T13:45:09

Guest: Joshua Marquis, Scott Turow, Bryan Stevenson, Kim Ogg, George Ryan

DAN ABRAMS, HOST:  Hi, everybody and welcome to this special edition of the program. 

Moments ago, “Dateline NBC” wrapped up a two-hour documentary on one of the most divisive legal issues facing our nation:  Can the death penalty be administered fairly, or is that part of the legal system broken beyond repair?  We‘re going to talk about that for the next hour with the man at the center of the “Dateline” special, former Illinois Governor George Ryan, and passionate advocates on both sides of the issue, and you.  Call us at 1-888-MSNBC-USA or send your e-mails with questions and comments for our guests to ABRAMSREPORT@MSNBC.COM.

But, first, for anybody who didn‘t catch “Dateline,” here‘s a look at some of the highlights of the film. 

(BEGIN VIDEOTAPE)

GOV. GEORGE RYAN ®, ILLINOIS:  I‘m commuting the sentence of all death row inmates, 167 of them. 

ABRAMS (voice-over):  With those words, then Governor George Ryan spared the life of every convict on Illinois‘ death row, an act that made headlines around the world and became the focus of an award-winning documentary called “Deadline.”

UNIDENTIFIED FEMALE:  I think that you reap what you sow.  I think death is the best thing for you. 

ABRAMS:  The film, which premiered at the Sundance Film Festival, is a behind-the-scenes look at Ryan‘s unexpected journey from tough-on-crime politician to death-penalty reformer. 

RYAN:  And I know what it feels like to be responsible for a man to be executed.  Until you‘ve sat in judgment and made that life-or-death decision, you really can‘t debate with me about what it‘s like to pull the switch. 

For Ryan, that journey began in 2000, when an explosive series in “The Chicago Tribune” exposed 13 false convictions on Illinois‘ death row. 

RYAN:  We now had 13 death row inmates exonerated.  It‘s like flipping a coin, heads or tales, live or die.  Can you believe that? 

ABRAMS:  The articles prompted Ryan to set up a commission to examine every death row case and to hold hearings to see if the penalty was being handed out fairly and if the right person had been condemned for each crime. 

UNIDENTIFIED MALE:  The governor is empowered to grant or to deny clemency under any terms as he sees fit. 

ABRAMS:  During the clemency hearings, defense attorneys and family members pleaded for leniency. 

UNIDENTIFIED MALE:  I can‘t promise you he‘s innocent, but he has always denied it.  There is no evidence.

UNIDENTIFIED FEMALE:  I am Robby Jones‘ mother.  And I am here today to plead for his life. 

ABRAMS:  But prosecutors and victims‘ families were just as vigilant, demanding justice for those they‘d lost. 

UNIDENTIFIED FEMALE:  It would be a grave insult to our family if Governor Ryan were to grant Jones clemency. 

UNIDENTIFIED MALE:  There is nothing wrong with him other than he‘s just an evil individual.  The only appropriate sentence is the sentence of death.  Thank you. 

ABRAMS:  In the end, Ryan had the power to commute all of the sentences, none of them, or do just about anything in between.  As his final day in office approached, even he seemed unsure. 

RYAN:  I don‘t know what I‘m going to do.  The reports that you folks come out with on a daily basis about what I‘m doing or what I‘m not doing.  So, I mean, all of this stuff probably (UNINTELLIGIBLE)

UNIDENTIFIED FEMALE:  Everything has been really emotional, though, talking to the families.

RYAN:  Life and death is emotional. 

ABRAMS:  Ryan‘s ultimate decision to empty Illinois‘ death row, converting all sentences to life in prison without parole, earned him a Nobel Peace Prize nomination.  But the praise was far from universal.  Critics blasted the clemency for being overly broad and simplistic. 

For now, there remains a moratorium on the death penalty in Illinois. 

And around the country, the debate rages on. 

(END VIDEOTAPE)

ABRAMS:  At the time the film was made, the filmmakers did not have access to Governor Ryan.  Now we do.

Former Illinois Governor George Ryan joins us from his hometown of Kankakee, Illinois. 

Thank you very much, Governor, for coming on the program.  We appreciate it. 

RYAN:  Well, I‘m delighted to be here in Kankakee, Illinois. 

(LAUGHTER)

ABRAMS:  I apologize for the mispronunciation. 

RYAN:  It‘s all right.  It‘s a though word.  Great town, though.

ABRAMS:  One issue that I don‘t think was really addressed in the film was the question of why you couldn‘t commute many of the sentences and yet keep even five, 10, 15 of the sort of worst of the worst on death row?

RYAN:  Well, that‘s a fair question. 

And let me say that this was about innocence and guilt.  And when I met with the families of the victims, they implored me to look at each case individually and not to blanket commute, to take each case individually and determine who should remain on death row and who should be commuted.  I spent a lot of time and a good many hours studying each and every case, 167 of them exactly. 

And I had a lot of help and advice from a lot of good people.  And, in the end, I said, I don‘t know how I can determine who is guilty and who is innocent.  These are people that have been through trial, found guilty by a jury without a reasonable doubt, sent to die by the state and that jury, and had their cases appealed and have been through appeals for 10, 15, 20 years, some of them.  And now I‘m supposed to make the decision about either guilt or innocence. 

ABRAMS:  Not a single one?

RYAN:  And some of those people had already been exonerated. 

ABRAMS:  Not a single one?

RYAN:  And so I decided the only fair way to do it was to just commute all of them and put them in prison and throw the key away and to make sure they stay there for the rest of their life, and that‘s where they are today. 

ABRAMS:  Governor, was that a frustration with the system or was that based on the fact that you believed that you couldn‘t say with confidence that any one of the 167 were guilty beyond a reasonable doubt and deserved the death penalty? 

RYAN:  No, I believe that the majority of those people were probably guilty.  But the question is what percentage or degree of accuracy do we want in our system?  Do we want to say that 1 percent is OK, that our system is only 99 percent accurate, or do we want to say we want a system that‘s 100 percent? 

And so to eliminate any doubt as to whether we were going to execute an innocent person or not, I had no choice but to do what I did. 

ABRAMS:  But doesn‘t that say that the entire justice system is a mess?  Yes, we‘re talking about the death...

RYAN:  Well, I‘ve said that. 

(CROSSTALK)

ABRAMS:  No, but I mean beyond just the death penalty.  Basically, what it sounds like you‘re saying is, we simply can‘t trust convictions at all. 

RYAN:  Well, I think that‘s—I wouldn‘t say at all. 

I would say that, in other cases, other than capital cases, there‘s probably a lot of innocent people sitting in prison today.  We need to rewrite the criminal code in Illinois.  If I‘d been governor a little longer, we‘d have probably gotten that done.  But this is the death penalty that we‘re talking about, and we‘re talking about innocent people that had been sent to die that were actually innocent. 

And we can‘t have a system in this country, if we‘re going to be known as the human rights country, as a country that cares about people and is the beacon for hope and freedom in this world, we can‘t have a system that‘s less than 100 percent.  And that‘s my theory. 

ABRAMS:  Governor, you know that you have a lot of critics out there in particular as a result of this.  And some have said, well, you know, now the governor has been indicted on federal charges that came—stemmed from something before you were ever the governor.  And someone suggested the reason you did this was to deflect attention. 

Let me read you an e-mail from one of our viewers who raises this issue, Denise Cahill from Des Moines, Illinois: “I think, as you interview Mr. Ryan tonight that you understand that many of us in Illinois believe that the position he took on death row inmates was completely a diversionary tactic against Mr. Ryan‘s own crimes.”

What‘s your response to that? 

RYAN:  Well, you know, I try not to answer my critics too much.  I try and think about all of the good things that I did while I was governor.  And I really haven‘t commented on my indictment and don‘t intend to here tonight or until the proper time. 

But I stand by what I did.  I hadn‘t been indicted when I did it, didn‘t think I was going to be indicted, and was surprised by the action, frankly.  So I did what I thought was right and I feel good about it every day when I get out of bed, feeling that I did the right thing. 

ABRAMS:  Did any of the victims‘ families have an impact on you, that so much so that, as you were about to make this decision, you said to yourself, you know, maybe there are just two or three cases where I should just say—because there were a couple people who didn‘t even ask for their sentences to be commuted, where you would say, you know what, I‘m just going to let the death penalty go forward in a few of those cases?

RYAN:  Well, I suppose there are a lot of things that I could have done differently, but I did what I thought was right at the time.  I still feel it was the right thing to do, and I would do it again, frankly. 

ABRAMS:  Governor Ryan, if you could stick around with us, because we‘re going to be spending the full hour talking about this.  This is an issue that you really brought to the forefront that needs to be discussed.

And throughout the hour, our viewers are going to get a chance to ask you some questions, ask our guests some questions. 

Up next, we hear from both sides of the death penalty debate, including author and attorney Scott Turow, who now opposes the death penalty, as we heard in the film.  But we also have two prosecutors who strongly support it and think Governor Ryan was wrong to commute the sentences.

We‘ll be back on this special edition of THE ABRAMS REPORT.  And we‘ll take some of your phone calls and e-mails.  Call us, 1-888-MSNBC-USA, or e-mail your questions at ABRAMSREPORT@MSNBC.com.

We‘ll be right back.

(COMMERCIAL BREAK)

ABRAMS:  Coming up, following up on “Dateline NBC”‘s two-hour special on the death penalty, we debate the film, take your e-mails, phone calls on this special edition of the program.  Among our guests, author and attorney Scott Turow and the Texas prosecutor who put two convicted killers on death row.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP, “DEADLINE”)

UNIDENTIFIED MALE:  I‘m Rob Wern (ph).  I‘m Rhonda‘s (ph) dad.  She was my daughter.  Please have some patience with me because I‘m really nervous.  If I may, I will say something to Kelly (ph). 

UNIDENTIFIED MALE:  Please go right ahead.

UNIDENTIFIED MALE:  I can‘t forgive Roddy (ph). 

UNIDENTIFIED FEMALE:  No, I‘m not asking for your forgiveness.

UNIDENTIFIED MALE:  I can‘t forgive him at all.

UNIDENTIFIED FEMALE:  I‘m not asking you...

UNIDENTIFIED MALE:  He committed a crime on my daughter. 

UNIDENTIFIED FEMALE:  I‘m not asking for forgiveness.  I can‘t even do it myself, Rod. 

UNIDENTIFIED MALE:  I want him executed.  I can‘t help it.  I‘m sorry. 

UNIDENTIFIED FEMALE:  I understand.  I understand. 

UNIDENTIFIED MALE:  But that‘s the way it is. 

UNIDENTIFIED FEMALE:  I understand.  I do, Rod.  I do

(END VIDEO CLIP)

ABRAMS:  From the “Deadline” documentary, a painful exchange between a murdered victim‘s father and the killer‘s mother.  She wouldn‘t ask for forgiveness from him or give hers to her son.

But the killer‘s family did get what it wanted from the governor, the sentence commuted, along with those of 166 others on death row.  Many of the victims‘ relatives are still furious and the majority of Americans still support the death penalty. 

So, joining me now to discuss this, Joshua Marquis, Clatsop County, Oregon, district attorney and co-chairman of the National District Attorneys Association‘s Capital Litigation Committee, Bryan Stevenson, New York University law professor and executive director of the Equal Justice Initiative of Alabama, Kim Ogg, former chief felony prosecutor who put two convicted killers on Texas‘s death row and is now on the board of Justice for All, a Texas-based victims-rights group.  And with us from Chicago, Scott Turow, a former prosecutor, a member of Governor Ryan‘s death penalty commission and best-selling author.  His latest book is Ultimate Punishment: A Lawyer‘s Reflections on Dealing with the Death Penalty.

Thank you all for coming on this special edition of the program. 

Appreciate it. 

Joshua Marquis, your reaction first to the film and also to Governor Ryan‘s comments that we‘ve just heard. 

JOSHUA MARQUIS, OREGON DISTRICT ATTORNEY:  Well, Dan, I‘m very glad you‘re having this show, because the two hours that people who watched “Dateline” have just watched is a very skillful piece of political advocacy journalism. 

And there were no proponents of the death penalty.  There were seven

of some of the most articulate, including two of your guests, Bryan

Stevenson and Scott Turow.  But there was no real discussion about the

other part

(CROSSTALK)

ABRAMS:  What was wrong with the film as a substantive matter? 

MARQUIS:  Well, substantively, it avoided the whole issue of why Americans support the death penalty, which is that there are people—

Scott Turow made one reference to one case that a lot of people know about, Mr. Gacy. 

It didn‘t talk about the fact that there are studies that show the death penalty deters.  There are recent studies that show that the racial disparity isn‘t there.  But, most importantly, the people in that film that supported the death penalty were Lester Maddox, a racist Southern governor, Richard Nixon and George Bush.  And the death penalty is not a Democrat-Republican issue.

It‘s not that simple.  There are a lot more nuances to it.  And it‘s not simply bloodthirsty prosecutors vs. innocent people on death row, because, frankly—and I think Bryan and Scott will agree with me—the number of innocent people on death row is a very, very tiny number. 

ABRAMS:  Do you dispute the governor‘s numbers? 

MARQUIS:  Absolutely. 

Governor Ryan promised the people of Illinois that he would look at each case.  He had a clemency commission that went through weeks and months of anguish.  He ignored the clemency commission‘s recommendations. 

ABRAMS:  All right.  Well, Scott Turow was on that commission. 

Is that true? 

SCOTT TUROW, AUTHOR/ATTORNEY:  Well, I was not on the clemency...

ABRAMS:  I‘m sorry, sir.

TUROW:  I was on the governor‘s commission. 

ABRAMS:  You were on the governor‘s commission.  I‘m sorry.  Yes. 

TUROW:  I was not on the clemency review board. 

ABRAMS:  Right. 

TUROW:  But I can answer some of the things that Joshua is saying.  I don‘t agree with him that there are compelling studies that show that the death penalty is a deterrent. 

I don‘t even agree with you, Dan, that a majority of Americans actually support the death penalty.  There‘s a plurality.  There are more people who favor the death penalty than who favor life imprisonment without parole as the maximum punishment. 

And I also agree with Joshua that there are good people, well-intentioned people on both sides of this debate, and political labels really don‘t contribute a lot to the discussion. 

(CROSSTALK)

ABRAMS:  Kim Ogg, do you believe—it is hard to believe at this point that the death penalty actually deters crime, meaning that someone is actually going to think about pulling the trigger twice because they know the state has the death penalty, as opposed to spending life in prison without parole. 

All right, I think we‘re having a problem. 

(CROSSTALK)

ABRAMS:  Go ahead.

MARQUIS:  I can respond to that. 

ABRAMS:  Go ahead.  Yes. 

MARQUIS:  Senator Dianne Feinstein, who is a Democrat, originally was an opponent of the death penalty.  And she talked about when she was sitting on a parole board and a woman came before her and said, I took a gun into a robbery, but I made sure it wasn‘t loaded because I didn‘t want to shoot anybody. 

There are three studies by economists from Emory University, the University of Houston, the University of Colorado that have shown a distinct correlation between states that have capital punishment and reduction of murder.  That‘s not the main argument for the death penalty. 

(CROSSTALK)

ABRAMS:  But, Bryan Stevenson, the problem with statistics like that is it doesn‘t necessarily mean it‘s because of the death penalty. 

BRYAN STEVENSON, EQUAL JUSTICE INITIATIVE OF ALABAMA:  Well, that‘s exactly right. 

And that point has been made about precisely the studies that Josh is referring to.  Look, there are states very close to Illinois.  Michigan doesn‘t have a death penalty.  Iowa doesn‘t have a death penalty.  Those states had tremendous reductions in their violent crime rates without the death penalty. 

Nobody believes, really, as a policy matter that we have to have the death penalty to deter violent crime.  We could execute everybody on death tomorrow and America would not be safer the next day.  That‘s not what the death penalty is about.  It‘s about something different.

Pat Janney from Indiana writes this e-mail to us: “I‘m convinced that the death penalty is a major reason why juries vote not guilty.  I know I would find it much easier to find someone guilty of murder if I knew he would be serving a life sentence.  But sending someone to death, to the death chamber, couldn‘t do it.”

Scott Turow, that‘s an interesting sentiment.  And, you know, it is an issue that comes up in every case, but in all of these cases, jurors have to be what is called death-qualified, correct, and it‘s separated into two phases of the trial, correct? 

TUROW:  That‘s correct. 

And, generally speaking, defense lawyers certainly contend that death-qualifying a jury, which means that anybody who says that, as a matter of scruple, they cannot impose capital punishment, that that person is excluded from a jury, defense lawyers certainly believe that they‘re getting a more conviction-prone jury as a result.  So I‘m not sure I can agree with the viewer‘s premise. 

ABRAMS:  All right, let‘s take a quick break here. 

When we come back—Kim Ogg, I apologize to you about that problem. 

We‘re going to be back to you in a moment. 

More of your phone calls, your e-mails.  We‘re talking about this documentary that has just aired on “Dateline NBC” talking about Governor Ryan‘s decision to commute all of the death sentences in the state of Illinois.  Our number is 1-888-MSNBC-USA, our e-mail, ABRAMSREPORT@MSNBC.com.

Stay with us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP, “DEADLINE”)

DONALD CABANA, FORMER PRISON WARDEN:  Americans don‘t have the right to ask their prison officials to execute innocent people, even if it‘s by honest mistake.  And the problem, of course, that we‘ve learned from Governor Ryan is that, in Illinois, innocent people didn‘t always go to death row because of honest mistakes or human error. 

(END VIDEO CLIP)

ABRAMS:  Donald Cabana served as warden at Parchman prison in Mississippi and presided over several executions.  He was in a documentary that has aired on “Dateline NBC” focusing on the death penalty in Illinois.  Governor Ryan cleared out Illinois death row there after deliberating for three years. 

We want to know what you think about it, too.  Call us, 1-888-MSNBC-USA, your e-mails, questions, comments, ABRAMSREPORT@MSNBC.com.

Let‘s go Right to the phones. 

Larry from Oregon, you‘re on the program. 

CALLER:  Yes. 

Josh, if a person was to have—on a death penalty case—an attorney that was court-appointed because he didn‘t have the funds for like a Geragos or something like that, well known, would the appeals be just as efficient if you, you know, if you were to appeal it? 

ABRAMS:  And, Larry, thank you very much for your phone call. 

To follow up on Larry‘s question, also, Governor Ryan in the documentary says that 33 percent of the people who were convicted in Illinois were represented by people who were either suspended or disbarred.  That‘s a stunning number. 

MARQUIS:  Well, I distrust almost everything that George Ryan says.

But beyond that...

(CROSSTALK)

TUROW:  Well, that happens to be true, Josh. 

MARQUIS:  But let‘s talk about Oregon, the state—this person just called from Oregon.

(CROSSTALK)

MARQUIS:  In Oregon, I have both prosecuted and defended death penalty cases.  I am outspent 20-1.  If you are charged with capital murder in Oregon for the last 15 to 20 years, you will get a defense that costs at least $250,000. 

And I think even Scott will agree that the Cook County public defender‘s office does a superb job.  A lot of these cases that they‘re talking about happened in 1978, in 1981, frankly, a generation ago legally.  They‘re focusing on some horror stories.  We can talk about horror stories on the other side.  We can talk about people like Henry Brisbon, who wasn‘t on death row for the first person he murdered, or the second or third person he murdered.  He was on death row because of the inmate he killed. 

(CROSSTALK)

STEVENSON:  Yes, I don‘t think anybody can dispute in this country, not just in the death penalty area, but throughout, we have a criminal justice system that treats you better if you‘re rich and guilty than if you‘re poor and innocent.  Wealth matters. 

I don‘t think any of your viewers seriously doubt that wealth makes a difference.  With regard to death penalty cases, particularly in the states where executions are taking place, there are horrific problems.  Those statistics are very much what we‘re seeing in the deep South executions.

ABRAMS:  Kim Ogg, what do you make of that?  You are working in Texas. 

KIM OGG, VICTIMS‘ RIGHT ADVOCATE:  Yes, I work in Texas, which is in the deep South.

And I would dispute that quality-of-counsel argument.  Death row inmates here, when they are just defendants charged with capital murder, receive what I would say is the best representation in Houston, in Harris County.  There is probably less danger of an innocent person being convicted in a capital crime, because each side takes such care in preparation.

(CROSSTALK)

ABRAMS:  But that‘s exactly the argument they made in Illinois before they investigated all of these cases, exactly the same words that you just used. 

OGG:  Well, factual innocence is far different than due process violations.  And whether people had ineffective assistance of counsel, that can be remedied on a case-by-case basis.  But for the governor to throw the baby out with the bathwater because he felt there were some case where people had been treated unfairly is ridiculous. 

ABRAMS:  Scott—Scott Turow, 10 seconds.  I‘ve got to take a break.

TUROW:  Well, I think what the governor was saying is, with 13 proven exonerations in this state out of roughly 175 death penalty cases, the odds were simply too high.  He didn‘t know who was left on death row who was actually innocent. 

OGG:  But, Scott, proven by whom?  Juries found these people guilty. 

It wasn‘t the governor...

(CROSSTALK)

ABRAMS:  Let me take a quick break, because I‘m going to ask the question that you‘re asking when we come back, which is, isn‘t the governor just throwing up his arms and saying that the justice system doesn‘t work?  And what about the other 37 states that have it?  Is it overused?

All of that coming that on our continuing special program.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP, “DEADLINE”)

RYAN:  I‘m from Kankakee.  It‘s 60 miles south of here, but it‘s 1,000 miles difference in style and philosophy.  We didn‘t think much about capital punishment in Kankakee.  But when something came up and there was a terrible crime committed, we wanted the police to find the bad guy, lock him up, and, if the crime was bad enough, to get the chair for what he did.  That was even all the better.  We were happier if that happened. 

(END VIDEO CLIP)

ABRAMS:  Former Illinois Governor George Ryan describing how he felt about the death penalty before he began to question if it could be administered fairly.

That clip from the documentary “Deadline,” which aired on NBC, “Dateline,” Friday night and sparked this special edition of the program.

And, again, we want to hear from you, 1-888-MSNBC-USA, your e-mails,

ABRAMSREPORT@MSNBC.COM.

But, first, back to our panel. 

Kim Ogg, this is one argument which I have made in the past, and I‘ve heard a lot of other people making as of late, and that is that the death penalty has become too much of a garden-variety crime.  And the problem with that is, you prosecute too many cases using the death penalty, and purely based on the statistics, you‘re going to end up with more people who are wrongly convicted. 

Shouldn‘t there be something, at the very least, which says this is going to be saved for the worst of the worst? 

OGG:  Well, you know it is saved for the worst of the worst in Texas and in every other state that I‘m aware of. 

The folks who were exonerated or whose sentences were commuted in Illinois committed some of the most heinous crimes, for example, Finney (ph) and Williams (ph), a couple who cut a fetus out of a woman to steal a baby and killed her other two children because they were witnesses to her murder.  I just don‘t see how we can get a graver, more heinous offense than that. 

And Governor Ryan commuted those folks‘ sentences, right along with everybody else‘s.  It wasn‘t his job to determine innocence or guilt.  Commutation, clemency is about mercy, not guilt, innocence.

(CROSSTALK)

ABRAMS:  That‘s my problem, Professor Stevenson, with what the governor did here, is that he didn‘t have—I understand he wanted to make a point, that the system is broken, but he still could have made a huge point, the system is broken, by commuting half the sentences, as opposed to all of them. 

STEVENSON:  You can—this cannot be a just nation if we execute an innocent person.  This can‘t be a just nation even if there‘s a risk.

(CROSSTALK)

ABRAMS:  But how can it be a just nation if we convict innocent people at all of any crime? 

STEVENSON:  Well, we can‘t. 

ABRAMS:  So we can‘t have a justice system.

STEVENSON:  Well, we can, but we can‘t have the death penalty.

The question about the death penalty isn‘t, do these people deserve to die for their crimes?  The question about the death penalty is, do we as a society, do these states deserve to kill when they make these kinds of mistakes, when their criminal justice system is undermined by race bias, when it doesn‘t treat the poor the way it treats the wealthy?

And these statistics out of Texas, the 5th Circuit has just reversed a case where a lawyer was—a case was reversed because a lawyer was asleep during the trial.  That man put 23 people on death row.  We‘ve got statutes in the South where you can‘t get paid more than $1,000 for the representation you provide in a death penalty case. 

There are hundreds of people on death row today who don‘t have

lawyers.  Many of these exonerations came not from lawyers and the legal

system, but from journalists, from the fortuities of intervention.  That

tells you that this system is not reliable.  And that‘s why you have to

(CROSSTALK)

ABRAMS:  Father Neil from Cleveland, Ohio, joins us on the telephone. 

Father Neil, you‘re on the air.  Thanks for your call.

CALLER:  Thank you. 

One of the things that concerns me—and I‘ve been involved with the abolition movement in Ohio and with the guys on death row in Ohio for some time now—is that, no matter where you‘re at on the death penalty, we shouldn‘t at least fear conversation and communication about it.  And with my working with the guys, I have found that it‘s very difficult to get communication from the level of the governor‘s office or the prosecutor‘s office.

ABRAMS:  What does that mean, though?  What do you mean communication? 

CALLER:  Let‘s have some—let‘s meet with it.  Let‘s talk about this.

There was a study done by Ohio State University a number of years ago that found that we have the same problems in Ohio that Illinois found with their system.  And we can‘t get the governor to look at it.  It‘s like, let‘s talk about it.  Let‘s discuss the issue. 

ABRAMS:  And, Scott...

OGG:  You know, the issues...

ABRAMS:  Go ahead, Kim, yes.

OGG:  ... are being discussed on programs like this and in living rooms all across the country.  And people are divided on the death penalty. 

But the thing is, in many states, the people, by vote, have decided that is their will.  And while it was Governor Ryan‘s legal right, I suppose, to commute these folks‘ sentences, it was not his moral right to do so.  He subverted the will of the people. 

(CROSSTALK)

ABRAMS:  Scott Turow, you are someone who says you used to support the death penalty.  You sort of came around to this kind of middle position, I guess, where I‘m at now, which is that I believe it shouldn‘t be used as a garden-variety crime, but I still support the penalty.  You now believe it simply just can‘t be imposed fairly. 

TUROW:  Yes, I don‘t believe it works, Dan. 

And I spent two years trying to find ways that seemed to me to make sense while I sat on Governor Ryan‘s commission.  And I don‘t think that the death penalty will ever be fairly and justly applied in this country.  And there are a lot of different reasons, but one of the things that we‘ve got to look at and recognize is that we face a fundamental paradox with capital punishment. 

If we are really choosing the worst of the worst, then we have to admit that those are the cases that are most likely to create irrational, emotional reactions in police officers, in prosecutors, in judges, in juries, even in defense lawyers. 

OGG:  You know, Scott

(CROSSTALK)

ABRAMS:  Lee me Josh Marquis a question. 

Josh, are you—look, are have willing to have a system, as Professor Stevenson points out, where the death penalty is in place and yet there‘s a mistake—at the very least, there is a mistake or two and innocent people get executed? 

MARQUIS:  There is no such thing as a perfect system.  And if you ask Bryan...

ABRAMS:  So the answer is yes?

MARQUIS:  Yes. 

If you ask Bryan Stevenson what reforms would satisfy him, the answer

is none, because those people like Bryan, who sincerely believe the death

penalty is wrong, will never accept

(CROSSTALK)

ABRAMS:  But the people on your side are willing to accept one or two people who will falsely be killed even if they‘re innocent. 

MARQUIS:  Well, you know what?  Let‘s look at the number of people that have been killed in the last 25 years.

(CROSSTALK)

ABRAMS:  But answer my question.

MARQUIS:  The number is zero.

STEVENSON:  Now, that‘s not fair. 

(CROSSTALK)

MARQUIS:  And let‘s look at the number of people who will die as the result of Governor Ryan‘s mass commutations.  There will be people who will die for sure because of the people he commuted.  Because they‘ve killed before. 

(CROSSTALK)

STEVENSON:  They‘re in prison for life. 

MARQUIS:  They killed guards.  They killed wardens.  They killed off their inmates. 

TUROW:  Josh, of the 550 people who were saved by the Furman decision, how many of them killed again, since you‘re so confident that those people...

OGG:  Well, you know, I can‘t address that specific question.

But I can point you to a case in Texas about a guy named Kenneth McDuff, who murdered three teenagers in the ‘60s, had his sentence commuted to life when the death penalty was found unconstitutional in 1972, only to be paroled.  Supposedly, he was going to be kept in prison the rest of his life.  That‘s what we‘re always told, and he killed 12 women again. 

(CROSSTALK)

STEVENSON:  Part of that is because prosecutors in Texas will not let the state legislature amend their statute to make life without parole the sentencing option to the death penalty. 

(CROSSTALK)

STEVENSON:  Texas is one of the few states in the country that don‘t allow life without parole as a sentencing option.  Listen, we could kill a lot people under the theory that we might prevent crime, but that‘s not the way our system works.

(CROSSTALK) 

ABRAMS:  Hang on.

(CROSSTALK)

STEVENSON:  ... we prove their guilt beyond a reasonable doubt.  And then even the question of guilt doesn‘t answer the question about the death penalty.  And that‘s why this question presents such a fundamental problem. 

ABRAMS:  All right, when we come back, former Illinois Governor George Ryan will be back with us, along with the rest of the panel, and you.

Call us, 1-888-MSNBC-USA, your e-mails, ABRAMSREPORT@MSNBC.com.  We‘re going to try and tick through a bunch of your e-mails and phone calls—coming up.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP, “DEADLINE”)

UNIDENTIFIED FEMALE:  What is important here is that when defendants are faced with brutal facts that certain things come about.  Either, all of sudden, mental retardation, all of a sudden, insanity.  Or, if those are not available to you, then someone else must have done it and I must have been beaten.

(END VIDEO CLIP)

ABRAMS:  A frustrated Illinois states attorney talking about the sorts of defenses she says she hears from suspects facing the death penalty before former Governor George Ryan commuted the sentence of all of the 167 capital criminals on the state‘s death row. 

Governor Ryan now joins us again from his home. 

(CROSSTALK)

ABRAMS:  Thanks for coming back.  We appreciate it. 

RYAN:  Thank you.  Thanks for having me.

I appreciate the opportunity.  I wish I could have been in on your discussion there for the panel. 

ABRAMS:  Go ahead.  What did you want to comment—go ahead.  What did you want to comment on? 

(CROSSTALK)

RYAN:  A couple things I want to talk about.

First of all, if these people from Texas and Oregon and wherever they‘re from have such confidence and feel their system is so good, why don‘t they call a moratorium, like I did?  They don‘t execute probably, at least in Illinois—I don‘t know about their states—but it takes about 12 or 15 years for somebody that‘s sentenced to die to be executed. 

What‘s a couple of years, if they‘re waiting, to study their system to find out if it‘s wrong?  And, as the priest pointed out, people don‘t want to get into that dialogue.  They don‘t want to talk about it.  And in our film tonight, we had one of the leaders of the Illinois House talk about and say, as a former prosecutor, they‘re always concerned about their image and reelection.  And that‘s really what a lot of this is about. 

So, if that system works so well in the death penalty capital of the world, Houston, Texas, then they ought to call a moratorium in the state of Texas and study the system to make sure that it does work well.  That‘s point one. 

ABRAMS:  Let me let Kim Ogg in on that one, then.

Go ahead.

RYAN:  OK.

OGG:  Well, coming in a governor with a bias so strong that he‘s not willing to talk about the fact that he was under investigation for many of the years that he was considering the commutations, I think that it‘s a very pointed question.

(CROSSTALK)

ABRAMS:  But that‘s not really relevant. 

(CROSSTALK)

ABRAMS:  I think that‘s only

(CROSSTALK)

RYAN:  I think that‘s a pretty cheap shot. 

ABRAMS:  Yes, I agree.  All right, I agree.

OGG:  You know, bias is bias. 

(CROSSTALK)

ABRAMS:  But the bias doesn‘t specifically relate to this.

OGG:  The bias does.  You are biased against the prosecution.

(CROSSTALK)

RYAN:  I was a strong advocate of the death penalty. 

OGG:  You are biased against crime victims by way of it.  And if you‘re under investigation and you know it, I don‘t think it‘s a cheap shot to point out that bias. 

(CROSSTALK)

RYAN:  It‘s absolutely a cheap shot, but that‘s OK.

ABRAMS:  I have got to let the governor respond. 

Go ahead, Governor.  Go ahead.

(CROSSTALK)

RYAN:  Let me say this, that the other thing is that the Constitution of the state of Illinois gives the governor explicit powers to do what I did.

And there‘s a reason for that.  I didn‘t usurp the voting public‘s rights.  That‘s their Constitution.  They voted for it, with that part of the Constitution being in place for the governor to exercise those kind of powers.

(CROSSTALK)

RYAN:  And that‘s why they‘re, to protect innocent people from death. 

ABRAMS:  I apologize, Governor.

Dean from Pittsburgh, go ahead.

CALLER:  Hello, Dan.  How are you?

ABRAMS:  Good.  Thanks.

CALLER:  I just have a point for the governor. 

There was 167 people that he dismissed.  And if we would have taken half of those people...

RYAN:  No.  No.

CALLER:  I‘m sorry?

RYAN:  No, wait.  I have got to stop you there.  They weren‘t dismissed.  They‘re all in prison.  They‘re there for the rest of their life, unless they can prove their innocence in some fashion.  And they‘re there without parole.  They‘re not out on the streets and they haven‘t been dismissed. 

(CROSSTALK)

CALLER:  In the year 2004, we have overwhelming DNA science, forensic

science.  If we would have taken half those prisoners and find out that

these cases were overwhelmingly true, that these people committed these

horrific acts, these people should have been sent to justice, rather than

laughing in prison about the crimes that they committed.  And they

(CROSSTALK)

ABRAMS:  Go ahead.  Let the governor respond.

RYAN:  I suppose it‘s all a matter of opinion.  And that‘s what America is about, I guess.

(CROSSTALK)

CALLER:  But it was a burden to take off your shoulders about you being indicted. 

ABRAMS:  All right, enough with this business about him being indicted, all right?

(CROSSTALK)

STEVENSON:  Can I just say this?

(CROSSTALK)

STEVENSON:  Two things.

What you‘re seeing now is what happens whenever a politician says, let‘s talk about a moratorium.  The governor says, let‘s talk about a moratorium and, all of a sudden, he‘s being branded as a criminal, as somebody who doesn‘t—who is biased.  And that‘s what happens to every politician in the country who says, I have some doubts. 

(CROSSTALK)

STEVENSON:  And the reason why the legal system

(CROSSTALK)

ABRAMS:  Hang on.  Go ahead.

(CROSSTALK)

STEVENSON:  ... problem is because you cannot even question the death penalty without being vilified, without being demonized.

DNA evidence only applies to about 10 percent of the cases.  We can‘t decide to use that as a magic tool to decide who is guilty and who is innocent.  We have got to talk about it.  We have got to study it.  We have got to think about it rationally, calmly, without the vilification that I‘m seeing here even tonight. 

(CROSSTALK)

ABRAMS:  Hang on. 

Josh Marquis, go ahead.

(CROSSTALK)

OGG:  That‘s exactly what juries are for.

(CROSSTALK)

ABRAMS:  Come on.  Hang on.

MARQUIS:  No intelligent person is not ambivalent about the death penalty. 

And never mind Governor Ryan‘s legal problems for the moment.  The fact of the matter is, in his commutations, he spit on the clemency commission.  He spit on thousands of jurors.  He spit on hundreds of judges.

RYAN:  Who is talking here?

ABRAMS:  Josh Marquis from Oregon.

MARQUIS:  He didn‘t care about

(CROSSTALK)

RYAN:  Josh, let me tell you something.

MARQUIS:  No, no.

RYAN:  I‘ve never met you.  I‘ve never seen you.

MARQUIS:  Yes, you have.  We‘ve met a couple of times, Governor Ryan. 

But you asked me a question about Oregon and why don‘t we have a moratorium.

(CROSSTALK)

RYAN:  Yes.  OK.  Go ahead.  I want to hear the answer.

MARQUIS:  We have 28 people on death row in Oregon.  Not one of them has ever even raised a claim of factual innocence.  All of them have been given defense lawyers who cost at least $250,000, some of them $1 million. 

We have a moratorium in the sense that the one person I have on death row has been there for 14 years. 

(CROSSTALK)

MARQUIS:  There is a moratorium in place because, even in your state, Governor, it takes 10, 15, 20 years, because we have an extraordinary due process system, which we should have.  The moratorium you called for was a political Hail Mary pass.  There should always—there would be a discussion about the death penalty and it should be rational.

(CROSSTALK)

ABRAMS:  Scott Turow. 

TUROW:  Well, I just—Josh knows that our legal system is not set up, once there‘s been a conviction, to ever really look again at the question of innocence.  So to say that people aren‘t contending they‘re innocent in a system that will not really ventilate that question is to really go past the point. 

(CROSSTALK)

OGG:  You know, Scott, that could not be more incorrect.  There are no cases that suffer more review on appeal than capital cases, thank goodness, because the last thing we want to do is to execute an innocent man. 

(CROSSTALK)

ABRAMS:  But you know what his point is.

(CROSSTALK)

RYAN:  Why don‘t we have moratorium in your states and study this

perfect system that

(CROSSTALK)

OGG:  We‘ve implemented reforms here without a moratorium because our

legislature chose not to

(CROSSTALK)

ABRAMS:  We have got to take a quick break here. 

E-mail from Ethan Breche from Greenwich, Connecticut: “Would Governor Ryan have commuted Osama bin Laden‘s death sentence had he had the opportunity?”

I‘m sure the governor has actually had to address that one before. 

We‘ll let him answer it after the break. 

Stick around.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP, “DEADLINE”)

UNIDENTIFIED MALE:  Governor Ryan fully understood that innocence could not carry the day on the commutations, that there were several dozen, if not more people, who were openly admitting their guilt, who had admitted their guilt throughout, that there were just as conclusive evidence as one can imagine.  So if this was all about innocence, factual innocence, you know, there would really be no justification of those cases. 

(END VIDEO CLIP)

ABRAMS:  We‘re following up on a movie that was aired on “Dateline NBC” tonight, a two-hour movie that followed Governor Ryan‘s decision in Illinois to commute all the death sentences there. 

Governor Ryan, before the break, one of our viewers asked if you would have commuted Osama bin Laden‘s death sentence. 

RYAN:  Well, they have to catch him first. 

(LAUGHTER)

RYAN:  But let me say that we‘re talking about life and death here.  We are the only democracy in the world, the United States, that executes prisoners.  We‘re the third largest executioner in the world. 

And I have to ask these people what the goal is.  Is it to be a nation of killers?  I think that life in prison—and this is an opinion of mine.  And they have their opinion.  But I believe that for a more severe crime is life in prison without parole and the key thrown away.  And that‘s exactly what we‘ve done. 

ABRAMS:  Josh Marquis.

MARQUIS:  Quickly, Japan and India are democracies that have the death penalty. 

TUROW:  But they haven‘t executed anyone.

MARQUIS:  The United States is not a rogue nation. 

But I have a question for Governor Ryan that I asked him.  I think it‘s several years ago.  And it goes to the core of this.  I have been a prosecutor and a defense attorney for 23 years. 

RYAN:  Are you up for election this year? 

MARQUIS:  No, I‘m not up for election this year, Governor.

RYAN:  OK.

MARQUIS:  But the question is this.  Justice is a work in progress. 

Are you demanding that we have a perfect system?  Because if you‘re demanding that we have a perfect system—I think Dan touched on this—not only can we not have the death penalty, but we shouldn‘t even be sending people to prison for five or 10 years, because to take 10 years of a young man‘s life who is wrongly convicted...

ABRAMS:  All right, Governor?

RYAN:  Well, what percentage do you think we ought to have, 99 percent, 90 percent?

MARQUIS:  Well, I‘m asking you, Governor. 

OGG:  Well, I would like to answer the governor‘s question about

(CROSSTALK)

RYAN:  My theory is we ought to have a 100 percent system, absolutely. 

STEVENSON:  Well, I think that we can‘t have a perfect punishment, like the death penalty must be in order for it to be just, with an imperfect system. 

(CROSSTALK)

ABRAMS:  And, Kim, I‘ll put the question to you that I asked to Josh Marquis before.  Are you willing to have a system where it makes one or two mistakes and one or two innocent people are killed? 

OGG:  I don‘t believe that one or two innocent people will be killed or have been killed. 

(CROSSTALK)

ABRAMS:  I didn‘t ask you have been.  I asked you if you‘re willing to have a system where one or two people innocent will be killed. 

OGG:  You know, I am looking for justice, like the rest of America. 

And I am looking for public safety. 

(CROSSTALK)

ABRAMS:  I think we have to answer that question, though.

(CROSSTALK)

OGG:  The answer is, it‘s a work in progress. 

And, yes, I‘m willing to have a system of men run by men and women

fairly for other men and women.  And if there is error in it, then we‘ll

correct that error, but you don‘t throw out

(CROSSTALK)

TUROW:  But you can‘t correct death. 

MARQUIS:  I‘ll answer that question.

We all agree that 10 guilty men should go free for one innocent.  Should 100,000 guilty men?  The fact of the matter is, it is a cost-benefit analysis.  In the long run, is it possible an innocent person will be convicted?

(CROSSTALK)

MARQUIS:  Excuse me.  Let me finish.

Will an innocent person ever be executed?  Yes, it‘s possible.  The other question that nobody has addressed is, how many innocent people will die if we don‘t have the death penalty? 

OGG:  And when will crime victims stop getting the short end of the justice system?

(CROSSTALK)

ABRAMS:  Scott Turow, go ahead.

TUROW:  Again, Josh, you‘re going back to this—the deterrence argument.  There‘s really no compelling support for that.  And that‘s not what the death penalty—support for the death penalty is about in this country.  People think it‘s moral.  And my own view is that they do not get that morality out of this system. 

MARQUIS:  John Gacy is not killing anybody else.

OGG:  You know, crime victims are the only ones who can really—that really have the standing for that.  And I‘ve not met one who told me they actually got closure.  I‘ve met folks who felt like they finally got justice. 

ABRAMS:  Governor, final 10 seconds. 

RYAN:  Well, I want to say thanks for the opportunity to both you and NBC for airing this program tonight.  This is exactly what we need.  And this is the kind of discussion that we need in America to bring some justice into this death penalty system.  And I appreciate the opportunity to be on this event this evening. 

ABRAMS:  And we appreciate you taking the time to come on the program. 

RYAN:  Thank you. 

ABRAMS:  And, as everyone can tell, not only is this very important, but it is very contentious. 

And we are—you know, we are going to continue following up on this story.  We‘re going to do more debates just like this one. 

Thank you all for joining us.  Kim Ogg, Scott Turow, Josh Marquis, Bryan Stevenson, and, Governor, thanks.

And thanks to all of you for writing in and calling in.  We appreciate it. 

Thanks for watching.

END   

Content and programming copyright 2004 MSNBC.  ALL RIGHTS RESERVED.  Transcription Copyright 2004 FDCH e-Media, Inc.  ALL RIGHTS  RESERVED. No license is granted to the user of this material other than for research. User may not reproduce or redistribute the material except for user‘s personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon MSNBC and FDCH e-Media, Inc.‘s copyright or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.

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