Mr. Death Penalty

Meet capital punishment’s chief defender

This November 30, 2009 photo shows the witness room facing the execution chamber of the 'death house' at the Southern Ohio Correctional Facility in Lucasville,Ohio.
Caroline Groussain/AFP/Getty
Nora Caplan-Bricker
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Nora Caplan-Bricker
Sept. 5, 2014, 1 a.m.

Most Amer­ic­ans don’t spend a lot of time think­ing about the death pen­alty, but this year, it has been hard to ig­nore. In Janu­ary, in Ok­lahoma, Mi­chael Wilson’s last words dur­ing his ex­e­cu­tion were, “I feel my whole body burn­ing.” A week later, in Ohio, an ex­per­i­ment­al cock­tail of drugs left Den­nis McGuire gasp­ing for breath for 26 minutes be­fore he died. Clayton Lock­ett writhed in pain on the gurney dur­ing an April leth­al in­jec­tion in Ok­lahoma; Joseph Wood slowly ex­pired over the course of two hours in Ju­ly in Ari­zona. That same month, a fed­er­al judge ruled Cali­for­nia’s death-pen­alty sys­tem un­con­sti­tu­tion­al, rais­ing the pos­sib­il­ity that the coun­try’s largest death row will be dis­mantled.

With the death pen­alty on the de­fens­ive, you might ex­pect an army of act­iv­ists to come to its aid. But even though a ma­jor­ity of Amer­ic­ans — 60 per­cent, ac­cord­ing to a June ABC News/Wash­ing­ton Post poll — sup­port cap­it­al pun­ish­ment, pas­sion­ate death-pen­alty ad­voc­ates or ex­perts can be dif­fi­cult to loc­ate. “I get asked a lot, ‘Who are some people who strongly de­fend the death pen­alty,’ be­cause [re­port­ers] can’t find them,” says Richard Di­eter of the Death Pen­alty In­form­a­tion Cen­ter, which op­poses cap­it­al pun­ish­ment. “There aren’t that many.”

On al­most all oth­er hot-but­ton is­sues in U.S. polit­ics — abor­tion, gay mar­riage, im­mig­ra­tion, tax policy, af­firm­at­ive ac­tion, for­eign policy — many heart­felt voices can be found on all sides of the de­bate. Cap­it­al pun­ish­ment is an odd ex­cep­tion. “With most people that would say they’re in fa­vor, it’s just sort of a re­flex­ive opin­ion,” says John Blume of Cor­nell Law School’s Death Pen­alty Pro­ject. “You don’t meet a lot of people who wake up in the morn­ing and say, ‘OK, let’s go get some people ex­ecuted.’ “

But that doesn’t mean there’s no one to ar­gue for cap­it­al pun­ish­ment. Blume and Di­eter both start their short list of death-pen­alty cham­pi­ons with the same per­son: a schol­ar named Kent Scheide­g­ger, the top law­yer at the Crim­in­al Justice Leg­al Found­a­tion, a small think tank in Sac­ra­mento, Cali­for­nia. For nearly 30 years, Scheide­g­ger has ded­ic­ated his pro­fes­sion­al life to de­fend­ing the death pen­alty. And he’s of­ten the go-to wonk for his side of the de­bate. When Cali­for­nia’s death pen­alty was ruled un­con­sti­tu­tion­al in Ju­ly, it was Scheide­g­ger who provided out­lets from The New York Times to the Los Angeles Times to NPR with their sole quote de­cry­ing the judge’s de­cision. Page back through years of sim­il­ar cov­er­age, and his name pops up again and again. “I think even for sup­port­ers of the death pen­alty, if you had them rank what they care about the most, it wouldn’t be high on their list,” Blume ar­gues. In that re­spect, he says, Scheide­g­ger is “a lone wolf.”

The truth, of course, is that Scheide­g­ger isn’t the only schol­ar put­ting forth ar­gu­ments for the death pen­alty. He’s joined by, among oth­ers, Robert Bleck­er of New York Law School; Joshua Mar­quis, a dis­trict at­tor­ney in Ore­gon who of­ten speaks on the top­ic; and Wil­li­am Ot­is, an ad­junct pro­fess­or at the Geor­getown Uni­versity Law Cen­ter. But with the na­tion­al death-pen­alty de­bate re­volving in­creas­ingly around Cali­for­nia, Scheide­g­ger is, at this point, the lead­ing pub­lic ad­voc­ate for a move­ment that has very few spokes­men.

SCHEIDE­G­GER GREW UP in Vi­enna, Vir­gin­ia, just out­side Wash­ing­ton, and his am­bi­tion from a young age was to serve in the mil­it­ary. He spent six years in the Air Force after gradu­at­ing from col­lege, earn­ing his law de­gree while on act­ive duty. When we spoke re­cently, he said his pas­sion for mil­it­ary ser­vice and his feel­ings about the death pen­alty came from “the same core be­liefs.” “I think the main pur­pose of gov­ern­ment is to pro­tect people from en­emies, for­eign and do­mest­ic,” he told me. “Mil­it­ary ser­vice and law en­force­ment are two sides of the same coin.”

I asked Scheide­g­ger about the ori­gins of this an­im­at­ing philo­sophy, but he couldn’t pin­point them. It wasn’t his par­ents; they were lib­er­als and en­thu­si­ast­ic sup­port­ers of the civil-rights move­ment who car­ried him along when they handed out cam­paign lit­er­at­ure. “It’s a fair ques­tion, but I don’t have a fair an­swer,” he says. “I wouldn’t say I was a re­ac­tion. I just charted my own path.” (Un­like some death-pen­alty ad­voc­ates, Scheide­g­ger has nev­er been per­son­ally af­fected by vi­ol­ent crime. He also has nev­er at­ten­ded an ex­e­cu­tion.)

In 1986, he was em­ployed as the gen­er­al coun­sel at Cali­for­nia Cool­er — an al­co­hol­ic-bever­age com­pany — when Cali­for­ni­ans voted three lib­er­al justices off the state Su­preme Court for re­fus­ing to en­force the death pen­alty. Scheide­g­ger, who had nursed an in­terest in con­sti­tu­tion­al ori­gin­al­ism — the be­lief that the Con­sti­tu­tion should be read as the Founders in­ten­ded — says he was “out­raged at the ar­rog­ance of judges “… mis­con­stru­ing the Con­sti­tu­tion to mean something it was nev­er in­ten­ded to mean.” He de­cided the death pen­alty was “the one area in all of jur­is­pru­dence where the mis­use of ju­di­cial au­thor­ity is the greatest” — and there­fore the one most in need of his en­er­gies.

Scheide­g­ger went to work as the leg­al dir­ect­or of CJLF. His pre­de­cessor had dabbled in a vari­ety of con­ser­vat­ive causes, but dur­ing Scheide­g­ger’s ten­ure, the group has fo­cused on cap­it­al pun­ish­ment. Its web­site boasts that “with a frac­tion of the an­nu­al op­er­at­ing funds spent by civil liber­ties groups, the Found­a­tion has main­tained the best win/loss re­cord be­fore the United States Su­preme Court of any pub­lic in­terest law or­gan­iz­a­tion in Amer­ica.” Con­ser­vat­ive justices have re­peatedly cited Scheide­g­ger’s amicus briefs and law-re­view art­icles, most re­cently this past term in White v. Woodall, in which the Court up­held a death sen­tence in Ken­tucky.

One nat­ur­al ally for Scheide­g­ger is the vic­tim’s-rights com­munity. “We all turn to Kent for the leg­al side,” says Har­riet Salarno of Crime Vic­tims United. Yet among in­tel­lec­tu­als, Scheide­g­ger is clearly in the minor­ity. “You’re not par­tic­u­larly well re­spec­ted as an aca­dem­ic or pub­lic-policy ex­pert if you sup­port the death pen­alty,” says Douglas Ber­man, a sen­ten­cing ex­pert at Ohio State Uni­versity’s law school who calls him­self a cap­it­al-pun­ish­ment ag­nost­ic. “It’s a little bit that they tend to be lib­er­al circles,” but also “there’s a sense that the more you know about the in­tric­a­cies of the death pen­alty, the less likely you are to sup­port it.”

“We need to be care­ful we don’t im­pose tor­tur­ous deaths on people, but we don’t need to be so squeam­ish as to say a per­son needs to feel no pain at all. I mean, it is pun­ish­ment.”

“Ba­lo­ney,” Scheide­g­ger says when I pose this to him. “I’ve been study­ing and work­ing in this area for a long time, and I haven’t found sup­port­ing it to be any more dif­fi­cult than it was the day I star­ted.” Scheide­g­ger says he de­plores the ho­mo­gen­eity of aca­demia, but he doesn’t let it get to him. “I’ve cer­tainly been called lots of nasty names. You just take that in stride and de­vel­op a thick skin.”

Among Scheide­g­ger’s con­tro­ver­sial views: He ar­gues that the death pen­alty de­ters crim­in­als, al­though in the academy this idea is widely con­sidered dis­cred­ited. Even the neut­ral Ber­man has said that “there’s not a lot of evid­ence that crime spikes up dra­mat­ic­ally” in the ab­sence of cap­it­al pun­ish­ment. In Scheide­g­ger’s view, “What happened is, the people do­ing stud­ies find­ing de­terrence have sort of giv­en it up, be­cause they’re be­ing at­tacked, and the people who are ideo­lo­gic­ally driv­en to op­pose the death pen­alty keep pump­ing out pa­pers.”

Scheide­g­ger also has a the­ory to ex­plain the fact that killers of white vic­tims are far more likely to re­ceive the death pen­alty. He ar­gues that this is “not the res­ult of dis­crim­in­a­tion against black people but rather the em­power­ment of black people,” who tend to op­pose cap­it­al pun­ish­ment and there­fore do not use it in their own com­munit­ies. “Why should any­one be sur­prised that areas with a high black pop­u­la­tion elect pro­sec­utors who seek the death pen­alty less of­ten and form jur­ies that im­pose the death pen­alty less of­ten?” Scheide­g­ger has writ­ten.

Blume, who has stud­ied the same is­sue, takes is­sue with Scheide­g­ger’s hy­po­thes­is. “To say it’s at­trib­ut­able to the polit­ic­al dy­nam­ics — it could be in some places, sure, but that doesn’t ex­plain that you see the phe­nomen­on in every state that you look at,” he says.

Scheide­g­ger is also un­fazed by the re­cent bad press sur­round­ing the death pen­alty. When I bring up the four leth­al in­jec­tions that went awry this year, he says he would only ap­ply the word “botched” to the ex­e­cu­tion of Lock­ett — who ap­peared to be in so much pain that of­fi­cials hal­ted the pro­ced­ure, al­though they were too late to stop him from dy­ing. The two- hour ex­e­cu­tion of Wood was “un­com­fort­able for the wit­nesses,” Scheide­g­ger al­lows, but not prob­lem­at­ic be­cause Wood was sed­ated.

“I don’t think a mur­der­er has a right to a pain­less death,” he says. “We need to be care­ful we don’t im­pose tor­tur­ous deaths on people, but we don’t need to be so squeam­ish as to say a per­son needs to feel no pain at all. I mean, it is pun­ish­ment.”

SCHEIDE­G­GER’S HOME STATE of Cali­for­nia now looks poised to be­come the 19th to ab­ol­ish the death pen­alty. Cali­for­nia At­tor­ney Gen­er­al Kamala Har­ris has said she will ap­peal the re­cent anti-death-pen­alty rul­ing by Cor­mac Car­ney, a fed­er­al judge ap­poin­ted by George W. Bush. But if it stands, the state will have two choices: throw out cap­it­al pun­ish­ment com­pletely, or re­form the state’s be­lea­guered death row.

Cali­for­nia ex­ecutes a tiny frac­tion of the people it sen­tences to death — 13 out of more than 900 since 1978 — and of­ten only after dec­ades-long delays. Car­ney wrote in his de­cision that be­cause it has be­come so un­likely that the state will carry out death sen­tences, and be­cause the few in­mates who are ex­ecuted are chosen so ar­bit­rar­ily, the sys­tem no longer serves a le­git­im­ate pur­pose.

Scheide­g­ger is one of the few voices in­sist­ing that Cali­for­nia’s death pen­alty can be suc­cess­fully re­formed. Even be­fore Car­ney’s rul­ing, CJLF helped to pen a bal­lot ini­ti­at­ive that would lim­it the time spent re­view­ing cap­it­al cases, thereby in­creas­ing the rate and num­ber of ex­e­cu­tions. It would also lower the cost of the state’s death row, which cur­rently hov­ers around $180 mil­lion a year. Scheide­g­ger blames much of this ex­pense on de­fense at­tor­neys, who he ac­cuses of stalling to keep their cli­ents alive. The ini­ti­at­ive didn’t col­lect enough sig­na­tures to make the 2014 bal­lot, but Scheide­g­ger says its sup­port­ers will try again for 2016.

I ask Scheide­g­ger if he ever thinks about mov­ing on to an­oth­er top­ic. Bleck­er, one of the oth­er ma­jor pro-death-pen­alty schol­ars, told me he is writ­ing a book about the philo­sophy of game and sport now, be­cause he’s “look­ing to cel­eb­rate life.” But Scheide­g­ger says he doesn’t find cap­it­al pun­ish­ment psy­cho­lo­gic­ally tax­ing, and he has no plans to aban­don his work.

Ber­man, for one, is glad. “Ab­sent many well-re­spec­ted people try­ing to de­vel­op a full-throated de­fense of the death pen­alty, I ap­pre­ci­ate that Kent is out there do­ing his best,” he says. “There’s a bit of group­think on this fron­ti­er. It makes me in­clined to root for the un­der­dog.”

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